Immigration Bulletin - Issue 209 - 6 December 2010

Monday 6 December 2010

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UKBA has issued a response to Channel 4's Dispatches programme on child asylum cases as broadcast on 29 November. For the response, click here.

UKBA has published an updated version of its summary guidance to help employers understand the law on illegal working and what they need to do to comply. For more information, click here.

Legislative Changes

The Asylum (First List of Safe Countries) (Amendment) Order 2010 (SI 2010 No. 2802) adds Switzerland to the 'first list of safe countries' in 2004 Act, Sch 3, para 2, with application even in relation to asylum and human rights claims made before the commencement of the Order on 20 November 2010 (see art 1(2) & (3)(a)).


Three interesting and positive determinations from the UTIAC as chaired by the President relating to EEA law and Ankara Agreement:

RK (OFM - membership of household - dependency) India [2010] UKUT 421 (IAC)
Art 10(2)(e) of the Citizens Directive (regarding inter alia proof of dependency) is a legitimate source of assistance in construing Art 3(2) of the Citizens Directive in relation to 'other family members' (OFM) in respect to whom the requirement of dependency on an EEA national is an alternative to being a member of the EEA national's household. A person may be an OFM by reason of dependency on an EEA national or their non-national spouse without the need for such a person to have resided in an EEA state. Furthermore the Tribunal doubted that there was any requirement for a dependant OFM to have lived in the same country as the EEA national shortly before the latter exercised free movement rights (so an Indian national OFM residing in India could bedependant on an EEA national exercising Treaty Rights in the UK - with dependency to be interpreted in accordance only with the relatively light test in Lebon: no requirement of necessity but merely for there to be economic dependency in fact - even though the OFM never lived in the EEA national's household in any country) but noted that this issue is to be considered by the CJEU on a reference by the UTIAC in the case of FB & MR. To read further, click here.

OB (EEA Regulations 2006 - Article 9(2) - Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC)
The term "was so residing" in EEA Regs 2006, reg 9(2)(a) does not require the UK citizen to necessarily have to have been in employment in the EEA state immediately before returning to the UK in order for the UK citizen to be treated as an EEA citizen for the purposes of the Regulations. On the facts a 13 month gap between the end of the British citizen's employment in Ireland and her and her Moroccan husband's return to Belfast did not break the link between the exercise of her Treaty rights and the return to the UK. To read further, click here.

EK (Ankara Agreement - 1972 Rules - construction) Turkey [2010] UKUT 425 (IAC)
(1) There is nothing in the 1972 Immigration Rules (HC 510) that provides that a person who cannot come within one of the categories of the Rules is to be refused an extension of stay for that reason alone. Accordingly, it was open to the Home Office to grant an extension of stay as a businesswoman to someone who had entered as an au pair. The finding in OT (Turkey) [2010] UKUT 330 (IAC) that HC 510 prohibited switching to business status by anyone other than a visitor is not considered correct. (2) HC 510, para 28 does not require a person who had been given leave as a businessman to demonstrate as a pre-condition for the exercise of discretion that in each or any year in which they had been given leave in that capacity they had complied with particular requirements of para 21. Those requirements are directly relevant only to the first application for permission to remain and the first extension of stay. (3) There is no precise code in HC 510 distinguishing between maintenance and accommodation and precluding third party contributions to living expenses. To read further, click here.

Also from UTIAC:
RH (UTIAC - remittals) Jamaica [2010] UKUT 423 (IAC)

The Tribunal emphasised that remittals to the FTT will only be contemplated in very limited circumstances. Substantively the Tribunal held that proper exercise of the discretion afforded by EEA Regs 2006, reg 17(4) requires the decision-maker to take into account whether or not the effect of refusal of a residence card to an extended family member would hinder or frustrate the continuing exercise of the free movement rights of the EEA family member/Union citizen. To read further, click here.

RR (refugee - safe third country) Syria [2010] UKUT 422 (IAC)
(1) Art 32 of the Refugee Convention applies only to a refugee who has been granted leave to enter / remain in the UK in accordance with para 334 of the Immigration Rules (cf. SSHD v ST (Eritrea) [2010] EWCA Civ 643). (2) As per Art 1A(2) in cases in which a claimant has more than one nationality, he will not qualify as a refugee if he can avail himself of the protection of one of his country's of nationality. (3) Even where a claimant has only one country of nationality (country A), it is permissible for the SSHD to propose more than one country of destination (country B etc) (cf. JN (Cameroon) v SSHD [2009] EWCA Civ 307 at [23]); (4) the questions then become: (i) whether by reference to country A (of nationality), the claimant is a refugee and (ii) if so the claim can only succeed if return to country B would be contrary to Art 33 (whether in relation to what happens in county B or by way of risk of refoulmentonwards to country A). (4) In any event, possible removal to a country not specified in the notice of decision under appeal is not a matter for the IJ.


Judicial Review Conference 2010 to be held on 9 December
HJT holds its annual judicial review conference in London chaired by Richard Drabble QC with speakers including Stephen Knafler QC, Mark Symes, and David Jones of Garden Court. For full details, click here.

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