Immigration Bulletin - Issue 215 - 31 January 2011

Monday 31 January 2011

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This week five UTIAC determinations released on 26th January 2011.InAW (sufficiency of protection) Pakistan [2011] UKUT 31(IAC) the UTIAC allowed the asylum appeal of a Pakistani policeman whose wife and brother were murdered by MQM 'shooters' and who was accused by the MQM of 'kidnapping' the two suspects whom he had arrested. The only issue on appeal was 'sufficiency of protection' and the Tribunal held: (1) Auld LJ in Bagdanavicius [2005] EWCA Civ1605 at [55] made clear that the test set out in Horvath [2001] 1 AC 489 was intended to deal with the ability of a state to afford protection to the generality of its citizens. (2) Notwithstanding systemic sufficiency of state protection, a claimant may still have a well founded fear of persecution if authorities know or ought to know of circumstances particular to his/her case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require (per Auld LJ at [55(vi)]). (3) In considering whether an appellant's particular circumstances give rise to a need for additional protection, particular account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated. To read further, click here.

In SA (political activist - internal relocation) Pakistan [2011] UKUT 30 (IAC) the same panel (Lord Bannatyne & SIJ Storey) allowed the appeal of a Pakistani PMLQ political activist who feared persecution at the hands of the PPP who had killed his brother, had targeted him and had supporters in the police. The panel applied the same reasoning as above to the issue of sufficiency of protection and held in respect to internal relocation that requiring a political activist to live away from his home area in order to avoid persecution at the hands of his political opponents has never been considered a proper application of the internal relocation principle: see e.g. Nolan J in Jonah [1985] Imm AR 7; and (since October 2006) such a requirement cannot be considered to be consistent with para 339O of the Immigration Rules / Art 8 of the Qualification Directive). Indeed, the pitfalls of requiring a person to act contrary to his normal behaviour in order to avoid persecution have been further emphasised by the SC in HJ (Iran) [2010] UKSC 31. To read further, click here.

YF (double jeopardy - JC confirmed) China CG [2011] UKUT 32 (IAC) UTIAC held, in dismissing the appeal of a Chinese national facing deportation following conviction for a drugs offence, that the guidance given by the Tribunal in JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036 is confirmed save for the addition of the words underlined: "The risk of prosecution or reprosecution will be a question of fact in individual cases but is more likely where (a) there has been a substantial amount of adverse publicity within China about a case; (b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas; (c) the offence is unusually serious. Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment; (d) political factors (which may include the importance attached by the Chinese authorities to cracking down on drugs offenders) may increase the likelihood of prosecution or reprosecution; and (e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom." (2) Reprosecution/double punishment of a returnee through the administrative disciplinary procedure system is extremely unlikely, since for a person to be considered under this system by virtue of an overseas offence the Chinese authorities must have decided his case was not serious enough to justify reprosecuting him through the criminal law system. To read further, click here.

KJ (working holiday maker - third party support) India [2011] UKUT 34 (IAC) the UTIAC considered that although the SSHD accepts that, following the judgment of the SC in Mahad v ECO [2009] UKSC 16, applicants for entry clearance as working holiday makers under the now defunct para 95 of the Immigration Rules, may rely upon third party support in order to show that they satisfy the requirements of para 95(v), which requires that: "(v) [the applicant] is able and intends to maintain and accommodate himself without recourse to public funds; ..." However, it will still be necessary for IJs to determine whether, on the facts, any third party support relied upon will in fact be available and, if so, whether on the whole of the evidence, the applicant satisfies the requirement in para 95(v). To read further, click here.

TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC) UTIAC held: (1) because findings of fact made by the Tribunal in a reported case are not binding does not mean that IJs are free to take account or not to take account of such findings at will: (a) the determination may contain an account of the record of evidence; (b) the Tribunal may have made findings of fact and if these relate to the same factual matrix then they should be followed unless there is a good reason to revisit them: see AA (Somalia) [2007] EWCA Civ 1040; (2) in cases in which the SSHD alleges that a claimant falls foul of para 320(1A) of the Immigration Rules, it will be important to follow the guidance given by the CA in AA (Nigeria) [2009] EWCA Civ 773 that knowing deception is needed to show false representations; (
3) given the nature and extent of the evidence found by the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00033 to point overwhelmingly to a conclusion that CCOL never ran any Postgraduate Diploma in Business Management or in IT, a claimant who relies solely on documents specific to his or her own (claimed) studies in order to maintain the contrary must expect these to be scrutinised closely. To read further, click here.



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