Immigration Bulletin - Issue 211 - 20 December 2010

Monday 20 December 2010

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Cases

O'Donoghue and Others v The United Kingdom (Application no. 34848/07)
The Strasbourg Court found that a Nigerian national with discretionary leave and a dual Irish/UK national were permitted to marry only after the UK's Certificate of Approval scheme was amended following unfavourable lower court decisions. Even so, they could not afford the fee and were married only after friends clubbed together to pay it for them. The Court accepted their right to marry had been had been infringed in a discriminatory fashion and they were granted 8,500 Euros non-pecuniary damages, £295 pecuniary damages and their costs and expenses. The first and second versions of the scheme imposed a blanket prohibition on the exercise of the right to marry on all persons in a specified category, regardless of whether the proposed marriage was one of convenience or not. A blanket prohibition, without any attempt being made to investigate the genuineness of the proposed marriages, restricted the right to marry to such an extent that the very essence of the right was impaired. The level of fees, which exceeded those that could be afforded by indigent migrants, interfered with the right to marry. The system of refunding fees to needy applicants, such as the second applicant, which was introduced in July 2010, constitutes an effective means of removing any impairment as the requirement to pay a fee, even if there is a possibility that it could be later refunded, may act as a powerful disincentive to marriage.
For the full judgment, click here.

Razai & Ors v Secretary of State for the Home Department [2010] EWHC 3151 (Admin) (02 December 2010)
Nicol J in the Administrative Court considered the Home Office policy on accommodation for dangerous offenders being considered for bail. He found that the inexactness of the match between reasons for detaining the person concerned and the reasons why Initial Accommodation is thought to be unsuitable and the desirability of clarity mean that the detention reviews are no substitute for the information which the SSHD is lawfully obliged to provide to an applicant who is not thought to be suitable for Initial Accommodation. The failure of the Rules to mention the progress of an application for bail accommodation did not mean that the SSHD could be under no duty to provide this information, for it would take much clearer language to exclude an obligation to act fairly, particularly in relation to a matter which potentially bore on the length of detention. Thus the policy did operate unfairly, because of the stark difference in the time taken to make offers to those who were considered suitable for Initial Accommodation (just a few days) and those who were, at least provisionally, thought not to be so suitable (when an offer of accommodation might not be made for weeks or months), applicants who were (even provisionally) thought to be unsuitable should have been told that this was the case and, in at least summary form, the reasons why. Fairness required this to be done and for such applicants to be given the opportunity to make representations in response to that view and/or to any indication which the SSHD has given as to the nature of Dispersal Accommodation which was thought to be appropriate. The information provided to the Claimants in their detention reviews was not a sufficient means of fulfilling this duty.
For the full judgment, click here.

Adetola, R (on the application of) v First-Tier Tribunal (Immigration and Asylum Chamber) & Anor [2010] EWHC 3197 (Admin) (09 December 2010)
Grenfell J sitting in the Administrative Court found that immigration judges should be slow to find that a marriage solemnised in the Church of England is a sham marriage and should accept the certificate of such a marriage as proof (which is highly relevant to the existence of a right of appeal against adverse EEA decisions). There could still be scrutiny of a certificate so that the immigration judge can be satisfied that it is a genuine document. Church of England priests should be astute to question couples closely and, if necessary, intrusively where there might be a possibility of them entering a marriage of convenience. There was no material distinction between a marriage solemnised according to the rites of the Church of England and one solemnised according to the rites of other churches or religions, so long as there is a similar examination of the couple's intentions by the person who is to officiate at the marriage ceremony.
For the full judgment, click here.

HM (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 1322
Jackson LJ in the Court of Appeal found the Maslov criteria of "the solidity of social, cultural and family ties with the host country and with the country of destination", is important, and where the Tribunal does not address criterion 10 and does not weigh it in the balance, its references to material facts elsewhere in the determination could not save the decision from remittal for reconsideration.

CC (Portugal) & anr v Secretary of State for the Home Department [2010] EWCA Civ 1406 (14 December 2010)
Longmore LJ in the Court of Appeal found that once it is appreciated that the purpose of according to a worker a right permanently to reside in an EU state is that of encouraging the integration of such workers into the population of the host state and that such purpose is not achieved or achievable in prison, it must follow that the worker is not legally resident in the host state as an EEA worker during the period of imprisonment and that any period, which includes that period of imprisonment, cannot be part of the necessary "continuous" period for the purpose of calculating the five years continuous legal residence necessary to acquire the right permanently to reside here.

MM (Iran) v Secretary of State for the Home Department [2010] EWCA Civ 1457
Sullivan LJ in the Court of Appeal recorded that the UNHCR does not contend that prior recognition by it of mandate refugee status is binding on the Secretary of State or the tribunal. The relationship between the UNHCR and individual states in the EU having to decide refugee status cannot sensibly be equated with the relationship between the European Commission and member states, where there is co-extensive jurisdiction which is shared by both the Commission and the individual member states. The obligation imposed on the United Kingdom, whether the issue is considered under the Treaty or the Refugee Convention, is an obligation to cooperate either with fellow member states in the EU or with the UNHCR, and it is not an obligation to be bound by the UNHCR's decisions. A decision by the UNHCR as to refugee status will, given the UNHCR's particular expertise and responsibilities under the Refugee Convention, be given considerable weight by the Secretary of State and the tribunal unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case.

Training

Full four day introduction to immigration law
Monday 17 January to Thursday 20 January

HJT Training offers its multi-day course to take delegates from an introductory level of immigration law to the knowledge standards for accreditation with the LSC or the OISC, level 2/level 3 respectively.
For full details and to book your place, click here.

Merry Christmas from Garden Court Chambers!

The Garden Court Immigration Team would like to wish you a very Merry Christmas and a Happy New Year. The Immigration Law Bulletin will return in 2011.

 

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