Immigration Bulletin - Issue 214 – 24 January 2011

Monday 24 January 2011

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Cases

M.S.S. v. Belgium and Greece - 30696/09 [2011] ECHR 108 (21 January 2011)
Overturning a whole series of earlier decisions and propositions, and issuing a standard-setting landmark judgment for the protection of asylum seekers, the European Court of Human Rights in M.S.S. v. Belgium and Greece - 30696/09 [2011] ECHR 108 (21 January 2011) has found returns of asylum seekers to Greece to breach ECHR Art 3 and ECHR Art 5 because of the poor living and detention conditions there. The obligation to provide accommodation and decent material conditions to impoverished asylum seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States. Those countries seeking to implement returns to Greece were themselves responsible for the ensuing foreseeable human rights breaches. The diplomatic assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee of due process. The shortage of lawyers on the list drawn up for the legal aid system rendered the Greek system ineffective in practice, which was a situation that represented an obstacle hindering access to the remedy and falls within the scope of Article 13, particularly where asylum seekers are concerned. Asylum seekers are a member of a particularly underprivileged and vulnerable population group in need of special protection. The discretion in the "sovereignty clause" of the Dublin II Regulation gave an opportunity for states to act compatibly with Convention rights. To read further, click here.

Miskovic & Anor v Secretary of State for Work and Pensions (Rev 1) [2011] EWCA Civ 16 (20 January 2011)
Elias LJ in the Court of Appeal considered whether an A8 worker required registration since he had been legally working in the UK for the requisite period of twelve months, either as an asylum seeker on temporary admission or as an overstaying spouse, the argument for the migrants being premised on the assertion that the migrant was "legally employed" on the 30 April 2004 by virtue of the permission to work from the Home Office. It was a perfectly cogent principle to treat those with leave to enter and remain differently from those granted only temporary admission. The limited permission to work historically conferred upon some asylum seekers gave them in any real sense access to the labour market in the way envisaged by the Scheme; nor did it confer any right to reside, merely a tolerance of their presence, and there was no reason why their period of employment should count towards the accrual of the rights conferred under the Scheme. The fact that someone was working on the accession date without infringing any domestic laws does not mean that they have to be treated as lawfully working here for the very different purpose of defining the rights of access of A8 nationals to the labour market. To read further, click here.

R (on the application of) v Cardiff County Council[2011] EWHC 23 (Admin) (17 January 2011)
Ouseley J in the Administrative Court states that it is for the Claimant to show that he is or was under 18 at the time that he asserts a duty was owed to him as a child because firstly, in judicial review proceedings it is for the Claimant to show that the public authority has erred in its duties and secondly because it is the Claimant who is asserting that the duty is owed; the authority is not asserting a power to do something. To read further, click here.

R (on the application of) v Secretary of State for the Home Department [2011] EWHC 9 (Admin) (10 January 2011)
Grenfell J in the Administrative Court considered the return of vulnerable individual to Turkey where they might face an interrogation not in itself a breach of ECHR Art 3 for the normal returnee, but where, in their individual circumstances, it might have such consequences. He found that there was a viable fresh claim present: an immigration judge needed to examine the expert medical evidence and to form a conclusion as to whether or not it presents a risk of re-traumatisation and of serious self harming in the event that the claimant is interrogated at the Turkish reception airport; as to what reception arrangements are likely to be in place; as to whether or not such reception arrangements are likely to address any risk of re-traumatisation. To read further, click here.

Legislation

The Education (Student Support) (European University Institute) Regulations 2010 (Amendment) Regulations 2011 No. 83 make certain alterations to the availability of support for migrant students. The effect of the changes to the definition of person with leave to enter or remain and the related amendments is that people (and their family members) who would have fallen within the category of "person with leave to enter or remain" but who do not fall within the new category of people granted humanitarian protection will not be eligible for support (excluding those with discretionary leave to remain, who hitherto were beneficaries). To read further, click here.

Other

On Tuesday February 1st from 4 to 7pm at London's Liverpool Street, Colin Yeo of Renaissance Chambers gives practitioners a chance to catch up on all the latest immigration developments, including the new language requirement for spouses, the visa age for spouses, other recent changes to the Immigration Rules, Certificates of Approval and important new case law on deception, and the general grounds for refusal. To read further, click here.

ILPA puts on a course on "European Union rights to reside - latest developments" on Thursday 27 January 2011, 4 - 7.15pm, the speaker being Simon Cox of Doughty Street Chambers. To read further, click here.

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