Keelin McCarthy

Profile

Keelin has particularly strong experience in claims involving unlawful detention, deportation, statelessness/deprivation of nationality, modern slavery, and cases raising overlapping immigration/family issues. She acts as an expert witness on complex immigration matters in family court proceedings.

Notable cases

R (MM (Malawi) v SSHD [2018] EWCA Civ 2482 – Junior counsel for the Appellant in the Court of Appeal, in a leading case considering the legal test for international protection claims based on a medical condition. The Court examined the threshold to be met for such claims under Article 3 ECHR, as well as the procedural obligations on SSHD to conduct enquiries and/or obtain specific assurances as to the availability of treatment in the receiving state. The case was considered as a test case for the Supreme Court, but this became academic after further fact-finding.

Secretary of State for the Home Department v Minh [2016] EWCA Civ 565 – Junior counsel in a case examining the scope and threshold of the positive obligations on SSHD under Article 4 when determining the status of a victim of trafficking / modern slavery. Despite the Court of Appeal arguably erring in law in its findings on the “credible suspicion” test, appeal could not be pursued to Supreme Court due to loss of contact with client. The Article 4 issues remain to be examined by higher authority.

R (Tabrizagh and Others) v SSHD [2014] EWHC 1914 (Admin) – Junior counsel in a leading case addressing legality of return of asylum seekers to Italy under the Dublin Convention.

Munday v SSHD [2019] UKUT 91 – A reported decision examining the meaning of “human rights claim” and the circumstances in which an EEA application will also be a human rights application. In a linked challenge, permission granted to seek judicial review of SSHD’s refusal to permit appellant to raise human rights grounds as a “new matter.”

Jan (Upper Tribunal: set-aside powers) [2016] UKUT 00336 (IAC) A reported decision of the Upper Tribunal on the scope of its powers following the decision to set aside its own decisions.

R (Luma Sh Khairdin) v SSHD IJR [2014] UKUT 00566 – A reported judgment giving guidance on statutory duties of the tribunal in assessing proportionality under Article 8 ECHR. This was a successful judicial review of SSHD’s refusal of leave to an adult dependent relative under Article 8 ECHR. Submissions described by the then Upper Tribunal Judge Peter Lane as “conspicuously well-argued”.

Shah v SSHD –Article 8 appeal on basis of best interests of a child whose parents, both disabled, were struggling to provide the care she needs. Successful argument in favour of grandfather being permitted entry to the UK to assist with her care, despite there being no immigration category under which this is permitted.

Khan v SSHD – Successful judicial review of SSHD decision refusing indefinite leave to remain under the accelerated route to a Tier 1 entrepreneur and his family; case addressed whether could combine part time positions to meet requirement for number of jobs created; won on all grounds argued.

HJ v SSHD – Unusual appeal in which the North Korean minor sought to join her mother in the UK, travelling on a Chinese passport which was admitted to have been obtained by deception of the Chinese authorities as to the child’s location of birth. Identity not accepted by SSHD on basis this could not be “a valid national passport.” Wider circumstances in North Korea and China leading to passport’s acquisition considered and appeal allowed under Article 8.

Umanets v SSHD – Successful appeal against “Operation Nexus” deportation of “Yellowist” artist Vladimir Umanets (Polish and Ukrainian national) who had been imprisoned for 2 years for criminal damage to a valuable Mark Rothko painting housed at the Tate Modern Museum. Metropolitan police gave evidence that Umanets represented the highest-harm criminal in his London borough on the basis of the high financial value of the art work damaged.

The New Yorker: A Vandal in The Tate.

 R(AWM) v SSHD –  Cart judicial review of Upper Tribunal’s refusal to seek permission to appeal to itself. Sexuality-based claim in which appellant had purportedly written to Tribunal to withdraw her appeal and declare that she was lying about being a lesbian (later established that letter was in fact sent by a homophobic housemate). Irrational for judge to rely on the purported letter in refusing permission: permission granted. Upper Tribunal withdrew judge’s decision and client later granted asylum.

Publications

1. Journal of Immigration, Asylum and Nationality Law (2024) Vol 38, No 4, IANL pp 377 – 381 ‘Case Comment: R (AM (Belarus)) v SSHD [2024] UKSC 13’ Considers the Supreme Court decision in R (AM (Belarus)) v SSHD holding that where a person could not be deported from the UK to their home country due to their own dishonest actions deliberately to thwart removal, it was not a breach of article 8 ECHR for the Home Secretary to maintain that person in limbo status, receiving just enough support from the UK state to avoid a breach of article 3, but refusing to allow them access to housing, employment, banking or full NHS services through a grant of leave to remain.
2. Journal of Immigration, Asylum and Nationality Law (2023) Vol 37, No 4, IANL pp 361 – 366 ‘Case Comment: R (Marouf) v SSHD [2023] UKSC 23’ Considers the Supreme Court decision in R (Marouf) v SSHD holding that a challenge to the UK’s Vulnerable Persons Resettlement Scheme by a Palestinian refugee who had fled the Syrian civil war but was unable to access the Scheme could not succeed under the Public Sector Equality Duty at section 149 of the Equality Act 2010, because that section does not apply extraterritorially.
3. Journal of Immigration, Asylum and Nationality Law (2022) Vol 36, No 4, IANL pp 348 – 352 ‘Case Comment: Basfar v Wong [2022] UKSC 20’ Considers the Supreme Court decision in Basfar v Wong holding that a foreign diplomat could not claim immunity from suit in a modern slavery action against him by a domestic worker, because the conduct was within the “commercial activity” exception under article 31(1)(c) of the Convention on Diplomatic Relations 1961.
4. Journal of Immigration, Asylum and Nationality Law (2022) Vol 36, No 3, IANL pp 255 – 258 ‘Case Comment: R (on the application of TN (Vietnam)) v Secretary of State for the Home Department & Anor [2021] UKSC 41 ’ Considers the Supreme Court decision in R (TN (Vietnam)) v SSHD on whether the invalidity of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 meant that all decisions made by the First-tier Tribunal under those Rules were automatically null and void.
5. Journal of Immigration, Asylum and Nationality Law (2021) Vol 35, No 4, IANL pp 380 – 385 ‘Case Comment: G v G [2021] UKSC 9’ Considers the Supreme Court decision in G v G examining the interaction between the 1980 Hague Convention and refugee law, and holding that a child named as a dependant on a parent’s asylum application should ordinarily be understood as making a claim for asylum in their own right, such that the child cannot be refouled, and a Hague Convention return order cannot be implemented, pending the determination of the asylum application.
6. Journal of Immigration, Asylum and Nationality Law (2021) Vol 35, No 1, IANL pp 58-61 ‘Case Comment: AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296’ Considers the Court of Appeal decision in AA (Nigeria), the reasoning in which was later upheld by Supreme Court in HA (Iraq), RA (Iraq) and AA (Nigeria) v SSHD [2022] UKSC 22. Examines AA’s appeal against the dismissal by the Upper Tribunal of his appeal against deportation, in which the Court of Appeal gave guidance on the “unduly harsh” and “very compelling circumstances” tests under section 117C of the Nationality, Immigration and Asylum Act 2002, rejected the “impossible” baseline comparator test in deportation appeals affecting children, and identified four key authorities.