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S Chelvan - Immigration

Shortlisted in the Barrister of the Year category in The Lawyer Awards 2017 

[A] master of his subject.  Very informative, humorous, 

personal, inspiring and very thought provoking.”

The Right Hon. Sir Terence Etherton, Chancellor of the High Court, 

11th Annual Stonewall Lecture (London: 5th February 2013).

2014 Legal Aid Barrister award in the Legal Aid Lawyer of the Year awards




 

 

(Finalist 2008:  LALY Judge since 2015)

-        November 2015 – Independent on Sunday Rainbow List - 101 most influential LGBTI people in the UK – ranked number 43, highest ranked lawyer  (Tom Daley, no 55).

-        2015 – Black Law Directory – Powerlist - top 34 black influencers in the law who make an impact on the country – “A Powerhouse”.

-        2015 #Legal Hero (the Law Society/the Bar Council of England and Wales/CILEX) – London LGBT Pride – 27 June 2015

-        2015 - Face in the “I am an Immigrant” poster campaign (Movement Against Xenophobia: Joint Council for the Welfare of Immigrants) – May 2015 General Election (May to June 2015)

-        2015 BBC Academy Expert Voices  – Glasgow – 11 March 2015

“ … [W]hen he speaks, governments listen.” - Peter Tatchell, November 2014.

Profiled by Laura Padoan of the UNHCR, as “one of the country’s leading human rights barristers” (May 2015), and by Colin Yeo as an “inspirational campaigning lawyer and academic” (April 2015), S. Chelvan, Barrister at No5 Chambers in London, is an activist, academic and advocate.  Chelvan is an LGBTI champion, specifically with respect to the rights of migrants and asylum-seekers.  He is recognised as having significantly contributed to ground- breaking LGBTI asylum cases, both here in the UK, and in Europe.  He litigates cases from the First-tier Tribunal to the Supreme Court, and the European Court of Human Rights.

In February 2013, Chelvan gave the 11th Stonewall Lecture, based on an analysis of the development of protection of LGBTI asylum seekers in the UK.  His lecture received international acclaim, specifically with respect to his highlighting the lengths gay asylum seekers were taking, in order to ‘prove’ their sexual identity, including the filming and photographing of sex acts.  Chelvan now directly advises the Home Office on LGBTI asylum claims, ensuring that asylum seekers are treated with dignity and respect.

Chelvan is recognised as having ‘a national and international reputation for training and lecturing in asylum law, with governments which include New Zealand, Sweden, Finland, Switzerland and the UK, implementing his DSSH (Difference, Stigma, Shame and Harm) model, endorsed by the UNHCR in 2012 and used globally by them and the IOM since December 2015, to help establish an asylum claim based on sexual or gender identity. In September 2014, Newsweek Europe described the model as a “simple starting point which cuts across borders”.  In the run-up to the May 2015 General Election, Chelvan was one of the 15 faces of  the “I am an Immigrant Movement Against Xenophobia poster campaign, with the sub-heading: “For the Past 13 years, I have been championing human rights and fighting for justice”.

Key Cases for 2016-2017:

Court of Appeal:

February 2016:
RY (Sri Lanka) v Secretary of State for the Home Department [2016] EWCA Civ. 81 - Vos and Simon LJJ - proceedings relating to deportation, cessation of refugee status and rebuttal of section 72 of the Nationality, Immigration and Asylum Act 2002 (real risk of reoffending), where there is no revocation of refugee status by the Secretary of State.  Appeal raises points of law with respect to separation of powers and due process.  Awaiting funding decision from the Legal Aid Agency with respect to application for permission to appeal to the Supreme Court (Junior for Supreme Court application: Varsha Jagadesham, tbc).

May 2016:
SB (India)  and CB (India) v Secretary of State for the Home Department [2016] EWCA Civ 451; [2016] 4 W.L.R. 103; [2016] 2 F.C.R. 221; Times, May 25, 2016 LJJ Moore-Bick,  Gloster and Richards  (permission granted by Elias LJ [2014] EWCA Civ. 501 - on 26 March 2014) – Flagrant breach of Article 8 (family life rights) ECHR to remove a married lesbian couple to India where there is no legal recognition and protection of same-sex unions.  In first case in a decade to address same-sex relationships in the immigration context, the Court of Appeal recognised the development of Strasbourg jurisprudence recognising right to legal recognition and protection of same-sex couples within Article 8 ECHR (family life) (see Schalk and Kopf (2010) and Oliari (2015)).  Appeal dismissed due to lack of flagrant breach. (Junior Victoria Hutton following grant of permission - Public Access and CFA agreement).  Case attracted national and international media attention, e.g. articles in The Guardian, Pink News; and The Times of India.

July 2016:
R (Apata) v. Secretary of State for the Home Department [2016] EWCA Civ 802. LJJ Moore-Bick, Burnett and Sales. Challenge to assessment of actual and/or imputed sexual identity of lesbian internationally recognised activist from Nigeria.  Appeal dismissed as material should have been submitted as a fresh claim.  Court of Appeal in this unusual case granted a stay on removal pending submission of fresh claim to the Respondent by early August 2016.  Respondent subsequently treats material as a fresh claim and grants the Appellant an in-country right of appeal.  Awaiting hearing date for First-tier Tribunal (IAC) hearing.  (Juniors for CA proceedings:  Jessica Smeaton and Jennifer Blair).

March 2017:
Secretary of State for the Home Department v AM (Pakistan) [2017] EWCA Civ 180 – leading Junior for Respondent in Secretary of State’s challenge on reliance of parent on 7 year presence of minor children in the United Kingdom as preventing removal (non-deportation proceedings).  Secretary of State’s application for extension-of-time and substantive hearing heard as a rolled-up hearing on 15 March 2017.  (Junior: Varsha Jagadesham).

May 2017:
LC (Albania) v Secretary of State for the Home Department [2017] EWCA Civ 180 (permission granted by Lindblom LJ on 20th October 2016) - 2 grounds (1) FTT and UT’s reliance on Country Guidance case of MK (lesbians) Albania [2009] UKAIT 00036 unlawful as set aside by Consent by the Court of Appeal Order in September 2011; and (2)  Conduct on return no longer to be followed following MSM (Somalia) [2015] UKUT 00413 (IAC) (see entry below).  Warned 4/5 April 2017) (Junior:  Jessica Smeaton). 

June 2017:
MR (Afghanistan) v Secretary of State for the Home Department (permission granted by Davis LJ - [2014] EWCA Civ. 1717 – 15 December 2014) (hearing date 8 June 2017).  Following from AA (Afghanistan) (2012) see below, examines whether administrative removal can be successfully resisted under Article 8 (private life) ECHR grounds on the basis that the Appellant, through restitution arising from an earlier incorrect age assessment, should be granted discretionary leave.   22 September 2016 decision by the Respondent not to grant discretionary leave to be challenged by way of separate judicial review proceedings.

December 2017:
R (BK (Sri Lanka)) v Secretary of State for the Home Department and Lord Chancellor’s Department (IP) – (permission granted by Treacy LJ [2016] EWCA Civ 226 on 26th January 2016) - Appeal against refusal of permission to apply for permission for judicial review – will also consider lawfulness of decisions which relied on a determination made under the 2005 Fast-track Procedure Rules.  Test case (warned 5th/6th December 2017, Junior Jessica Smeaton). 

Administrative Court/Divisional Court:

March 2016:
R (MK) v Upper Tribunal (Immigration and Asylum Chamber and Secretary of State for the Home Department (IP) [2016] EWHC 828 (Admin) Mitting J – refusal of substantive application for judicial review of the Upper Tribunal’s statutory refusal of permission to appeal a negative determination of the First-tier Tribunal (IAC).  Consent Order agreed between all parties prior to the hearing, not agreed by the Court.  No appearance by the Defendant at the substantive hearing.  Additionally, addresses assessment of documentary evidence in light of allegation of forgery in decision to refusal asylum, on the basis of domestic and European case law.  Application for permission to appeal before the Court of Appeal pending).

December 2016:
R (Sinakoli) v Secretary of State for the Home Department (6th December 2016) Turner J – permission to apply for judicial review granted on the basis of Respondent’s complete failure to address countervailing positive factors when refusing application for British citizenship on bad character grounds (Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin) applied).  Awaiting substantive hearing date.

January/February 2017:
R (WLTB) v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin) (Anonymity) and [2017] EWHC 630 (substantive application) - Chelvan acted for 4 migrants (as the Second Claimants in the litigation), who are EU, EEA, dual-National or non-EEA who sought a declaration from the Divisional Court regarding an Act of Parliament authorizing exit from the Single Market (Article 127 of the European Economic Area Agreement 1994 and the EEA Act 1993). He was instructed as Sole Counsel for initial hearing on anonymity on 17 January (made final on 3 February 2017 – led by Ramby de Mello). This judgment creates a legal precedent following death threats to Gina Miller in the Brext1 litigation and the Article 127/single market litigation led to Orders for Anonymity being granted despite opposition from the media.  The case involved submission of evidence of a death threat made on social media to Chelvan, coupled with the threats to Gina Miller, established real risk to safety to the 4 Claimants based on evidence of risk to third parties – this creates a legal precedent with respect to the law on ‘open justice’.

Upper Tribunal:

Unreported cases may be cited in other proceedings, pursuant to the Practice Direction 11.2 of the Consolidated Practice Directions (November 2014). 

April 2016:
Secretary of State for the Home Department v EFH (AA/08503/2015) (unreported) - dismissed appeal by the Secretary of State appealing successful asylum claim of pre-operative trans woman from Singapore.  Accepted under Singaporean law, Respondent would be treated as a man as she was not born female (cis female), or is a post-operative trans woman.  She has been living as a woman for the past 10 years in the United Kingdom and recognised as female by the Home Office, but would have to return to Singapore and participate in reservist training for 2 weeks every year until 2023, living, working and showering with men and treated as a man.  The Secretary of State’s case was this conduct by the Singaporean state did  not amount to persecution. Appeal of Secretary of State dismissed.  No appeal lodged and refugee status granted.  Case attracted national and international media attention, e.g. articles in The GuardianPink News; and The Straits Times (Singapore).  There are no reported gender identity asylum determinations by the Upper Tribunal (IAC).

June 2016:
SASS v Secretary of State for the Home Department (AA/0783/2015) (unreported) - successful appeal by gay man from Sri Lanka, relying on Respondent’s September 2015 Country and Information Guidance: Sri Lanka: Sexual orientation and Gender Identity (September 2015) as displacing findings of lack of persecution of openly gay men and availability of internal relocation to Colombo in  February 2015 Upper Tribunal’s Country Guidance case of LH and IP (gay men: risk) Sri Lanka CG [2015] UKUT 00073 (IAC).  Determination not appealed and refugee status granted.  Chelvan is recently instructed in judicial review proceedings for LH and IP against the refusal of a fresh claim where reliance in placed on the September 2015 CIG and the SASS determination.

November 2016:
Secretary of State for the Home Department  v PR (AA/11637/2015) (unreported) - following dismissal of Secretary of State’s appeal to the Upper Tribunal based on misleading grounds of appeal (March 2016), landmark determination awarding wasted costs against two named Home Office Presenting Officers for unreasonable conduct in not addressing Applicant highlighting misleading and inaccurate nature of the grounds.  Wasted costs awarded against the Presenting Officer who drafted the grounds of appeal and the Senior Presenting Officer in February 2016.  This is the first time the Upper Tribunal (IAC) has awarded wasted costs against Home Office Presenting Officers.  Section 29 of the Tribunals, Courts and Enforcement Act 2007 includes Presenting Officers as constituting “representatives”.   (“Remarkable”  Colin Yeo, Free movement blog).

RECOMMENDATIONS

Chambers UK

“An esteemed and highly respected immigration barrister who is particularly recognised for his LGBTQ rights work. His work is international in its scope, while his diverse client base includes many individuals who are fleeing persecution.

Strengths: "He is extremely well regarded for his work in LGBTQ asylum seeker cases." "He is very committed and knows everything there is to know about same-sex asylum seeker cases. Always pushes to get the best results for his clients."

(Chambers & Partners UK, 2017, Immigration, Band 2)

“He has majorly contributed to the big change in the attitude of the tribunals to LGBTI cases” “He excels in High Court work, he is very passionate …” (2016)  “Very intelligent, hard-working, and imaginative in his approach to cases” (2015) "He has great client skills, as well as court skills. He is a very eloquent speaker and is very watchable in court." "He has probably become the leading practitioner in the UK for political asylum claims on sexuality” (2014) “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” (2013, Immigration, Band 2). Chelvan’s "strong advocacy and dedication to clients." He is known as a doyen of immigration cases involving issues of sexual identity. (2012).  [A]t the forefront of ground-breaking cases in the area.  Sources say that he is “extremely committed” and “a particularly effective advocate.” (2011). Chelvan has “immense expertise” and, “the very welcome knack of putting vulnerable clients at ease.” (2010). “You can rely on him to work exceptionally hard and more importantly, highly effectively.” (2009). “Lawyers agree that he is “leading the way in relation to [sexual orientation and gender identity] claims in this area (2008).  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).

Legal 500

“His oral advocacy is impressive” (2016) (Band 2)

“An unsurpassed reputation for work with LGBT clients” (2015, Band 3) “Committed to forwarding the rights of migrants.” (2014). S Chelvan is a “ tenacious battler who fights with vigour and commitment” (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)

NOTABLE CASES                                                                  

European Court of Human Rights:

M.E. v SWEDEN, Application no. 71398/12 (European Court of Human Rights) (written comments dated 9 April 2013 and December 2013) (Judgment of Court on  26th June 2014.  Further written comments for appeal to Grand Chamber submitted on 23 January 2015 – case struck out on 8 April 2015 due to Swedish grant of refugee status in December 2014)
Instructed by FIDH (Fédération Internationale des Ligues des Droits de l’Homme), ICJ (International Commission of Jurists) and ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association).  Case of gay man from Libya challenging expulsion from Sweden.  First case to substantively address risk to gay applicants since earlier 2004 Strasbourg decisions - “Article 3 of the Convention does not permit a Council of Europe member state to expel (even temporarily) a gay man who is genuinely married to a man, or a lesbian who is genuinely married to a woman, if the expelled individual would face a real risk of treatment violating Article 3 in their country of origin if they were to speak publicly (or otherwise be open) about their sexual orientation and their same-sex marriage. The genuineness of the marriage can be determined in the Council of Europe member state, without expelling the individual to their country of origin” [§ 26 of written comments]. Proceedings before the Grand Chamber struck out following positive grant of refugee status by Sweden on 8 April 2015.

A.E v Finland (App.no 30953/11) 
(Instructed as sole Counsel by ECRE, FHRL, FIDH, ILGA-Europe) co-ordinated joint submissions with AIRE Centre/INTERIGHTS/UKLGIG (written comments submitted on 19 March 2014, proceedings struck out on the 22nd of September 2015 following positive grant of refugee status by Finland.”

MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00413 (IAC) (3 July 2015) – Journalists cannot be reasonably expected to change profession to evade persecution.  Importantly, notes that as a matter of European law, the voluntary discretion test in HJ (Iran), is no longer to be followed (paragraphs 43 to 48) Court of Appeal dismissed the Secretary of State’s appeal (see Secretary of State for the Home Department v MSM (Somalia) [2016] EWCA Civ 715 (12 July 2016)).

KL (Albania) v Secretary of State for the Home department (unreported) (14 September 2015) – 
Asylum claim of gay man from Albania allowed, contrary to the Secretary of State’s position  that firstly the Appellant was not a gay man, would not suffer persecution in the home area and since the setting up of a hostel in Tirana, would be able to relocate to the capital (as relied upon in the October 2014 Home Office Country Bulletin).  Important case to establish that contrary to section 94 certification in Albania asylum claims, claims cannot be inferred to be ‘bound to fail’.

AA (Somalia) v Entry Clearance Officer (Addis Ababa) [2013] UKSC 81; [2014] 1 W.L.R. 43; [2014] 1 All E.R. 774; [2014] 1 F.C.R. 548; [2014] Imm. A.R. 540; [2014] I.N.L.R. 273; [2012] EWCA Civ 563; [2013] 1 W.L.R. 268; [2012] 3 All. E.R. 893; [2012] 3 F.C.R. 96; [2012] Imm A.R. 858
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.  Supreme Court recommends amendment of Immigration Rules to allow for recognition of parental transfer under kafaala.

R (JN) v SSHD [2013] EWHC 1842 (Admin) (HHJ Davis – 7th June 2013)
Test case on paragraph 334 of the Rules (asylum claim) in a paragraph 353 (fresh claim) proceedings.  Irrationality of SSHD decision not to grant refugee status following submission of a fresh claim, where findings of facts following earlier proceedings showed that refugee status should be afforded.  Lesbian from Uganda.  Additional unlawful detention claim.  Secretary of State, contrary to earlier position of rejection of sexual identity claim grants refugee status to JN  without having to go back to a further FTT hearing (May 2014).  

R (RH and DY) v SSHD [2013] EWHC3295 (Admin)  (Lewis J).
Judicial review challenge to decision to transfer Eritrean Claimants to Belgium under Dublin II transfer regime, as the First Claimant was outside the territory for more than 3 months, prior to her re-entry (Article 16 (3) of the Regulations).  The Second Claimant has never been to Belgium, and was born following departure.  Belgium initially refused transfer request.  The substantive hearing considered whether the decision was compliant with duties under Dublin II regulations and sustainable to public law challenges pursuant to irrationality and unfairness.  Prior to 9 July 2014 oral permission hearing before the Court of Appeal, the SSHD grants refugee status to both Appellants in June 2014.

R (V) v SSHD [2013] EWHC 765 (Admin) (14th March 2013) Clive Lewis QC (sitting as a Deputy High Court Judge  (preceded by earlier litigation:  R (V) v AIT [2010] EWCA Civ 491 and [2009] EWHC 1902 (Admin)).
Successful substantive judicial review challenge of SSHD’s failure to grant settlement under 14-year long residence rule, due to character and conduct findings based on allegations of membership of a criminal gang and assertions linking to criminal conduct which did not lead to charges and/or convictions in a criminal court.  SSHD conceded that reliance on allegations which had not been proved by a fact finding Tribunal, and relying on spent convictions, were unlawful.  The issue to be finally determined was how far back should settlement be back-dated to?  SSHD insisted back-dating could only go back to decision under challenge (March 2011).  Claimant submitted that ILR be backdated to at the time of the withdrawal of the earlier deportation immigration decision in late July 2010 (based on a negative advice on the merits by her Counsel).  Administrative Court held that SSHD’s stance was irrational, and that the guidance of the Court in R (K) v Secretary of State for the Home Department [2010] EWHC 1528 (Admin), when applied in these proceedings, would see a backdating to somewhere within a month of the withdrawal of the earlier decision.  Following 2013 judgment, SSHD back-dated grant of ILR to 1 August 2010, i.e. 8 days following withdrawal of earlier immigration decision, which was preceded by 2010 and 2009 litigation. 

2009-2010 litigation:  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 in March 2011, following second set of judicial review proceedings commenced to challenge delay in determining outstanding 2005 application.  This leads to further challenge and ultimately the successful March 2013 proceedings.  

R (Harrison) v SSHD [2013] EWHC 1264 (Admin) (13th February 2013) (Collins J)
Lack of actual exclusion order, does not displace judicial assumption that it exists, even where no such order is produced.  Struck out permission application for being out of time and illegal status of Claimant during earlier part of stay in the UK.

MS (Afghanistan) v SSHD [2013] EWCA Civ 7
Court of Appeal introduces ‘new test’ for internal relocation alternative, by focussing on lack of risk in place of relocation to be dispositive of asylum claim in circumstances where the Court finds no finding of fact with respect to risk in home area, contrary to what had been the position of both parties to the litigation and the accepted approach prior to this judgment.  

GN (South Africa) v SSHD [2012] EWCA Civ 1930 (17th December 2012) – following permission hearing, asylum appeal allowed by Consent in 2013.
White gay man from South Africa, granted permission to appeal by Laws LJ against Upper Tribunal determination which dismissed his asylum claim, on the basis of effective state protection in South Africa.  Upper Tribunal was not provided by the SSHD, prior to the promulgation of the determination, a copy of her own Operational Guidance Note of February 2012, which conceded that there is a lack of effective state protection in South Africa.  Permission granted on the basis that it was arguable that the SSHD had a duty to disclose this document to the Upper Tribunal which undermined the basis of her appeal.  Appellant successful on asylum and human rights grounds before First-tier Tribunal (IAC) as per  HJ/HT Supreme Court guidelines.  Chelvan instructed following Upper Tribunal determination.

R (on the application of AA (Afghanistan)) v SSHD [2012] EWCA Civ 1643; [2011] 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 [2007] 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). Claimant’s grant of 3 years DL over-turned by Court of Appeal and remitted to SSHD to decide grant of leave.  Court of Appeal additionally directed the SSHD to review the asylum claim on the basis that he is still a child (displacing Ravichandran  principle).  Claimant seeking permission to appeal to the Supreme Court on both points.

NP (Sri Lanka) v SSHD [2012] 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.

MW (Democratic Republic of Congo) v SSHD [2011] 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 above). 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 [2011] 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) [2010] UKSC 31; [2011] 1 AC 596.

R (otao Razai and ors) v SSHD [2010] 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 (otao SB (Uganda)) v SSHD [2010] 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) [2009] EWCA Civ 1432; [2010] 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 [2009] EWCA Civ 856; [2010] INLR 169; [2009] 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.  Point of law incorporated into SSHD’s Asylum Policy Instruction on Sexual Orientation Issues in the Asylum Claim (2010, updated 2011).

HJ (Iran) and HT (Cameroon) v SSHD [2009] EWCA Civ 172; [2009] 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) [2010] UKSC 31; [2011] 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 [2009] 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 [2008] UKAIT 00065
Country guidance case assessing risk to gay men in Uganda - distinguished by SB (Uganda) (see above) and not followed by the SSHD’s current Operational Guidance Note which accepts persecution of openly lesbian and gay men)

RG (Colombia) v SSHD [2006] EWCA Civ 57; [2006] 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 [2006] 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 [2005] 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 [2005] UKAIT 0015; [2005] Imm A.R. 666 (section 8 of the 2004 Act is retrospective).

QUALIFICATIONS AND AWARDS:

BSc (SocSci) Politics and Law (First Class), University of Southampton (1st in Class of 70) – Finalist, Public Speaking Competition, World Universities’ Debating Championships (Cork, Eire, 1995);

Called to the Bar, Inner Temple (14 October 1999) Major Scholar and Duke of Edinburgh Entrance Award – BVC (ICSL) (Very Competent);

Summer 2000 Fellowship, Visiting Research Fellow, Centre for International Human Rights Law, Northwestern University, Chicago;

LLM, Harvard Law School, International Human Rights Law and the Lesbian and Gay Liberation Movement - Kennedy Memorial Trust Scholar (UK Equivalent of a Rhodes Scholarship) -  Executive Editor of the Harvard Human Rights Journal, Article Consultant – Harvard International Law Review, Research Assistant Professor Anne-Marie Slaughter; and

PhD Candidate in Law (Part-time), King’s College London, commenced 2008, upgraded 2010, thesis due 3 February 2018.  Thesis title:  “Understanding LGBTI refugees' lives: moving from Conduct to Identity in Sexual and Gender Identity Asylum Cases in the UK” (First Supervisor: Professor Satvinder Juss (KCL): Second Supervisor: Professor Jenni Millbank (University of Technology, Sydney)).

APPOINTMENTS

No5 Chambers, Management Board (2016 to date)

Equality & Diversity Officer and Diversity Data Officer (2016 to date)

Equality and Diversity Committee, General Council of the Bar (2008-to date)

Bar Pro Bono Unit (Panel Member: 2004-2016, Reviewer (from January 2017 (3 year term))).

Pupil Supervisor (since 2009, refresher training completed in November 2016).

STONEWALL Ambassador (2015)

Home Office Committees – NASF Equality Sub-group and LGBT Training Committee (since December 2014)

SPEAKING EVENTS, PUBLICATIONS AND MEDIA WORK     

National and international reputation in training and lecturing on asylum law to decision-makers, practitioners and activists to enable empowerment of LGBTI asylum seekers and refugees.

2013 - 11th Annual Stonewall Lecture “ From silence to safety: Protecting the gay refugee?” (Law Society, 5th February 2013), Immigration Law Committee presentation on LGBTI asylum credibility (March 2013), “Are you an aggressive homosexual?: LGBTI asylum claims in 2013” ILPA Southwest (Bristol: 25th May 2013), “Interlaw PRIDE Panel” (London: 27th June 2013), Swedish Migration Board Training, Stockholm, Sweden (November 2013).

2014 - At the end of the rainbow: where next for the LGBTI refugee? (Refugee Studies Centre, University of Oxford) (22 January 2014); LSE Star – LGBT History Month: (17 February 2014); ILPA Training on  LGBTI  Asylum: How to succeed in a claim (and other matters)(18 February 2014); Law Society LGB Panel discussion: Same-sex marriage (20 February 2014); ESOL Second Seminar Series: Sexual Migration, University of Leeds (March 2014); Meeting with the Home Office with respect to DSSH model (1 April 2014); (5-7 May 2014) ECRE/UNHCR/Hungarian Helsinki Committee – CREDO 2 Conference (Madrid – 4 to 7 May 2014) – Credibility in Asylum Claims – Training on Credibility in Sexual Orientation and Asylum Claims; (15 May 2014) – IDAHO meeting organised by the ADITUS Foundation in Malta – training on DSSH.  (19 May 2014) Meeting with members of the Independent Chief Inspector of Borders and Immigration working group – training on DSSH and (21 May 2014) Training of national trainers of 12 governments on DSSH in Budapest.  (19 June 2014) – Observed UK Home Office refresher training in Newcastle – referring to DSSH Model (refresher training given to all caseworkers in England and Wales).

2015 – 15- 16 January 2015:  Expert roundtable on Credibility (UNHCR: Budapest);  Amnesty International Birmingham Conference on the Human Rights Act (8 July 2015); LexisWebnar:  Immigration: General Grounds of Refusal” (3 September 2015); Home Office LGBTI Asylum Training to Senior Caseworkers, Lunar House, Croydon (11 September 2015); Judge for Pink News Awards, FCO (21 October 2015); provided oral evidence on asylum claims in Parliament to the All Party Parliamentary Group of Global LGBT Rights (28 October 2015, report published on 14 April 2016 All Parliamentary Group Report JCWI AGM Panellist “Crisis or Turning Point?” (29 October 2015); Freedom from Torture Conference – training on the DSSH model (23 November 2015); Masterclass on LGBTI Asylum law – Irish Refugee Council in Dublin (25 November 2015); and Glasgow Colloquium on Asylum Credibility (2 December 2015).

2016 – “FREEBAR” Launch Panellist (17 February 2016); “Asylum Law” - Liberal Democrat LGBT+ Winter Strategy Meeting (20 February 2016); “LGBT+ & Tamil” – Tamil Societies of KCL, LSE and UCL (25 February 2016); Training the Home Office on LGBTI Asylum in Sheffield – How to prove that I am gay (and other LGBTI matters)? (23 February 2016); Public Law Project – How to do judicial review? Birmingham (29 February 2016); training 200 Swiss refugee determination officers on the DSSH Model and LGBTI Asylum – Zurich and Bern, Switzerland (2 to 4 March 2016); Panellist, FREEBAR Birmingham event, Pinsents (17 May 2016); Immigrant Diaries: Sajeela Kershi Immigrant Diaries Brighton Fringe Festival (21 May 2016); “Tutor in International Human Rights Law – Undergraduate Summer School, King’s College London (July 2016);  and “LGBT+ Asylum – Law, Strategy and Credibility” (Birmingham, 14 December 2016).

2017: “Memoirs of an LGBTIQ+ Rights Lawyer” (Distinguished lecture series, University of Southampton, 16 January 2017); and “Credibility Assessment in Sexual Orientation and Gender Identity Asylum Claims” (UNHCR Eastern and Central Europe, Czech and Slovak authorities, Czech republic, February 2017).

“Be a Human Rights Lawyer” – panel speaker, Human Rights Lawyers’ Association, the Law Society, 11 May 2017; and UCL Conference on Albanian vulnerable asylum seekers, 6 June 2017.”

Publications:  Published journal articles and co-authorship of books  include “Put Your Hands up (If You Feel Love)” (JIANL 2011), “How does a lesbian come out at 13?” (Women’s Asylum News October 2011); and “Queer Cases, Great Law”, Opino Juris (March 2012); “From Silence to Safety” (Counsel Magazine: May 2013); “Case Comment, X, Y and Z” European Human Rights Law Review (2014) (1), pp. 49-58.  Westlaw Insight:  (January 2014) “Asylum: Basic grounds for claiming asylum” (March 2014) Lexis “How uncertain is the future for free standing article 8 claims?”; “The Last Legal Aid Barrister of the Year?” (Counsel Magazine: February 2015) “Are refugees from Syria really refugees?” (Free movement blog, 9 September 2014); and “New Home Office API on Gay Asylum Claims:  Not Fit For Purpose” (Free movement blog, 8th August 2016).

Books:

2014 - “Same Sex Marriage and Civil Partnership: The New Law” (Chapter 9: Immigration and Asylum), (Jordans, May 2014)  - “Chapter 9 addresses the law relating to immigration and asylum in impressive detail and engages extensively with the key authorities and procedural issues” (Helen James, 2015 The Law Teacher  Vol 49, No 1, 130-140) - “Often viewed as an incompressible area of the law, in this chapter … the key points are delivered in digestible chunks” (Andrew Powell, 2015, Journal of Social Welfare and Family Law, 37.2, 285-287).

2015 - “Sexual Orientation and Gender Identity” -  co-author - Chapter XI in Volume 2 of “Credibility Assessment in Asylum Procedures” (CREDO project, Hungarian Helsinki Project and the UNHCR, May 2015, launched at event on 25 June 2015 at No5 Chambers, London). “I found it very helpful and thoroughly thought provoking and an extremely useful text.  My thanks to you all for it.” (Paul Pedlow, Home Office, 17 June 2015).

2016 – post-September – Chapter on -  “Credibility Assessment in LGBTI Asylum Claims” – forthcoming in Satvinder Juss (editor) – Elgar Research Handbook on Refugees.

Media work: - Chelvan is regularly contacted by both the national and international media to provide comments and guidance.  In 2012, Chelvan acted as a Legal Consultant to Christine Murphy, for her BBC Radio Play “Kicking the Air”.  This production has currently been awarded 2 awards and is planning to transfer from the radio to the small screen.  2013 – 27th February – Radio4 Today program  - November 7th – BBC World Service  (X,Y and Z case in CJEU); 2014 – February – The Observer “Home Office wouldn’t believe that I was gay: how do I prove it?” and “Gay asylum seekers face humiliation”  (9 Feb 2014), and Channel 4 News  (28th of March 2014). 9 April 2015: BBC News – Campaign seeks to put pro-immigrant case; 14 April 2015: RT (Russia Today):  “#IAmAnImmigrant campaign ‘to humanize & try to detoxify anti-immigration debate”; ’ 22 April 2015 – ITV news: Immigration special “;  -  7 May 2015 Washington Post - “Britain’s Immigrants stand up to scapegoating”; “Calais Migrant Crisis” ZDF – Germany (29 July 2015); Radio 4 Women’s Hour “Jamaican Gay Pride” (7 August 2015); “Gay Asylum Seekers: the Truth Behind the Rumours” Gay Times (September 2015); “Aslands Journal” (ZDF – Germany) (11 November 2015) ;  “Legal Hackette Lunches with S, Chelvan” (25 January 2016); and ZDF – “Heute in Europe” - Anti-Slavery in the UK interview (9 February 2016). 

Public Access Accredited.

VAT Registration Number:  820778323