Immigration Bulletin - Issue 218 - 21 February 2011

Monday 21 February 2011

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Cases

Kulasekara v Secretary of State for the Home Department [2011] EWCA Civ 134 (18February 2011)
Stanley Burnton LJ noted the Court would deprecate any request, by any party, to require an expert witness who has given evidence and been cross-examined before a tribunal in what was intended to be a precedent determination, to attend for cross-examination unless there are specific matters to be put to her that were not the subject of investigation in the previous proceedings. To read the full judgment, click here.

Chichvarkin & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 91 (10 February 2011)
Richards LJ in the Court of Appeal considered the lawfulness of the Secretary of State's withdrawal of a decision refusing variation of leave to remain in the United Kingdom, in circumstances where the decision was the subject of an appeal to the tribunal under the "one-stop" procedure, the appellants had raised asylum and human rights grounds for the first time at the appellate stage and wanted those grounds to be determined by the tribunal, and the purpose of the withdrawal of the original decision was to enable the Secretary of State to reconsider that decision and to consider the new asylum and human rights claim as primary decision-maker: the Divisional Court's reasons below were approved by the Court of Appeal, which found that it was not inconsistent with the statutory scheme or with the policy and purposes of the legislation for the Secretary of State to withdraw a decision because he considers it appropriate for the original application to be reconsidered or a new claim to be considered by him, as primary decision-maker, in the light of matters advanced in the appeal or of other developments. The Court gave some guidance on parallel extradition and asylum and human rights proceedings, noting that an adjournment of the extradition proceedings to enable the asylum claim to be determined by the Secretary of State or the tribunal would be in the discretion of the judge, but the fact that the claim was being actively considered by the Secretary of State or the tribunal would be a strong factor in favour of an adjournment, bearing in mind reasons of confidentiality and risk to third parties. Similar considerations arose as to the relevance of findings by the Secretary of State or the tribunal in respect of a separate human rights claim. To read the full judgment, click here.

YZ & Ors, R. (On the Applications Of) v Secretary of State for the Home Department [2011] EWHC 205 (Admin) (10 February 2011)
Beatson J in the Administrative Court hitched his wagon to the long train of decisions that consider the safe third country process under the Dublin II Regulation, finding that, absent Wednesbury unreasonableness or a breach of an individual's human rights, although the Dublin II Regulation is directly applicable in Member States, alleged breaches of it are not actionable by an individual claimant. The Secretary of State is a competent body for the purposes of Article 20(1)(e) which empowers "the courts or competent bodies" to suspend the time for implementing a transfer to the Member State which has agreed to take that person back. The Secretary of State's policy as to suspension is consistent with the general thrust of not allowing the policy of the Dublin II process to prejudice judicial protection in the requesting state. It was not unlawful for the Secretary of State to have a policy to assist in the orderly administration of the Dublin II process when legal proceedings have been instituted by a person who is the subject of a request to another Member State where the claimants or their legal representatives had all been informed of the third country process. It was difficult to see the question of which State has responsibility to determine an application for asylum as a precedent fact either vis-á-vis individuals or other Member States. To read the full judgment, click here.

CT (Gurkhas:policy) Nepal [2011] UKUT 53 (IAC) (11 February 2011)
The tribunal found that, re members of the armed forces and their dependant relatives, - SET12 is the guidance applicable to applications from outside the United Kingdom, not applications from the United Kingdom, as to which the relevant guidance is Chapter 15, Section 2A of the Immigration Directorates' Instructions. Whilst the IDIs do not indicate any presumption that leave will be granted to adult children, they indicate merely that it may be granted in exceptional circumstances, following the consideration of criteria including those set out. The guidance requires a consideration of an applicant's family members, and consideration also of what the applicant's position would be if living outside the United Kingdom, and where (as perhaps in other Gurkha family cases) there was a delay between the application and the decision, during which the situation of the appellant's family members had changed, it cannot be right to make a decision requiring consideration of current circumstances, solely on the basis of the facts as they were over two years previously. To read the full judgment, click here.

JA (revocation of registration - Secretary of State's policy) India [2011] UKUT 52 (IAC) (11 February 2011)
The tribunal found that the Home Office policy on the consequences for migrant students of the withdrawal of their sponsor's licence was clear on the face of the language contained in the guidance, which clearly and explicitly confined to a possible decision to limit the existing leave to remain, if there is no question of a contribution to the circumstances leading to the withdrawal of the sponsor's licence. The limitation was, if the existing leave to remain is longer than six months, to 60 days; if the existing leave to remain is less than six months, it will not be further limited. In neither case on the face of the language does the policy contemplate a direct extension to the student's leave to remain. This guidance seemed to be capable of giving rise to arbitrary results. The Tribunal considered that the relevant point in time for calculating the outstanding leave to remain, and indeed for the imposition of any limit, cannot be at the time of the revocation of the relevant licence as that involved obvious unfairness as well as a limitation on leave absent a positive decision by the Secretary of State. The guidance does not give rise to any legitimate expectation that the Secretary of State will grant a period of 60 days' leave to any student whose original leave had expired by the date of the decision, so as to afford him an opportunity to register with an alternative education provider. To read the full judgment, click here.

AM (Evidence - route of return) Somalia [2011] UKUT 54 (IAC) (11 February 2011)
The tribunal found that travel from Mogadishu Airport into the city of Mogadishu and into other areas in Somalia is not only possible but takes place with some degree of frequency, and that the Al Shabaab checkpoints are generally well disciplined and their sole concern is whether travellers comply with the rules and norms of behaviour required. Not all men or young men are at risk of forced recruitment or of danger simply because they are being returned from the UK. A person with a relative who was able to fund his departure from Somalia and therefore will be able to take steps to help him avoid foreseeable risks at TFG checkpoints by helping with payment of the relatively modest sums often demanded will not be in danger. To read the full judgment, click here.

Events

28 February 2011
Home Office Policy, Concessions and the Exercise of discretion outside the immigration rules
An ILPA Seminar In London
For the details, click here.

3 March 2011
European Law Update
A HJT Seminar in London
For the details, click here.

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