Immigration Bulletin - Issue 220 - 21 March 2011

Monday 21 March 2011

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Editor's note: The Immigration Law Bulletin has not been issued for three weeks due to the editors being on leave. Consequently this issue covers developments since 1 March.

News

A National Audit Office report published last week, criticised the UKBA's failure to carry out checks on whether overstayers had left the country and their reliance instead on employers to police their own staff. For more information, click here.

The UKBA has announced that it will remove 8 occupations from the points-based system's shortage occupation list. For more information, click here.

Scotland Yard is considering bringing a corporate manslaughter charge against security firm G4S over the death of Jimmy Mbanga. For more information, click here.

Cases

Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09
8th March 2011

In a dramatic and landmark decision, the Court of Justice of the European Union finds that Article 20 of the Treaty on the Functioning of the European Union precludes a Member State from refusing a right of residence and work permit to a third country national whose dependent European Union citizen minor children would thereby be deprived of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

Tomaszewska (Social security for migrant workers) [2011] EUECJ C-440/09
3rd March 2011

The ECJ found that for the calculation of the minimum insurance period required by a Member State's national law for the purpose of acquiring by an EU citizen an entitlement to a retirement pension, the Member State concerned must take into consideration, all insurance periods completed in the course of the citizen's career, including those completed in other Member States. To read the judgment, click here.

Kiyutin v Russia - 2700/10 [2011] ECHR 439
10th March 2011

The European Court of Human Rights considered the prohibition of residence in Russia to persons who were HIV positive. Noting that if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, that the State's margin of appreciation is substantially narrower, and observing the absence of any European consensus supporting the Russian approach, the prohibition amounted to a discriminatory interference with the right to private life. The Court emphasised its consistent reference to relevant international instruments and reports in order to interpret the guarantees of the Convention to establish whether there is a common standard in the field.

MN (Tanzania), R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 193
The Court of Appeal concluded that the ratio of YH, R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 116, applied only to cases certified under S.94 of the Nationality, Immigration and Asylum Act 2002. Therefore the correct test for judicial review of a refusal to consider a fresh claim under Para 353 HC 395 is that set out in KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354 - Wednesbury unreasonableness subject to the requirement of anxious scrutiny. To read the judgment, click here.

Secretary of State for the Home Department v Abdi [2011] EWCA Civ 242
9th March 2011

The Court of Appeal considered the relevance of time spent pursuing appeals to the reasonableness of detention. The correct approach to the evaluation of detention over such a period is neither formally to count nor to discount time spent appealing or raising other legal challenges but to recognise that, like everything else affecting the duration of detention, it may have a measure of relevance, which will always be case- and fact-specific. Where the outcome of an appeal or challenge is clear and certain, that may be relevant, whether for or against the detainee. This applied to Rule 39 Orders of the Strasbourg Court too.

LO (Jordan) v Secretary of State for the Home Department [2011] EWCA Civ. 164
The Court of Appeal found that they did not have jurisdiction to hear an appeal against a preliminary decision of the Special Immigration Appeals Commission (SIAC) where there had been no final determination of the substantive appeal by SIAC. To read the judgment, click here.

Rangwani, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 516 (Admin)
9th March 2011

His Honour Judge Stephen Davies (sitting as a Judge of the High Court) found that a decision about whether or not to transfer a detainee from a prison to an immigration removal centre is one which is in principle susceptible to judicial review on public law grounds (though these were not proceedings, unlike Hardial Singh, where the Court could substitute its own view for that of the Defendant). However even if a Claimant could overcome the causation requirement in such a case, or it the Defendant was found to have acted irrationally or perversely in failing to transfer a detainee to an IRC, this would remain lawful detention, so that although the Claimant can obtain appropriate relief on public law grounds he cannot obtain damages for false imprisonment.

PM (EEA - spouse - 'residing with') Turkey [2011] UKUT 89 (IAC)
7th March 2011

The Upper Tribunal found that in the light of its objects and purpose Article 16(2) of the Citizens Directive is intended to afford all family members (irrespective of their nationality) the right of permanent residence after five years residence in the host state where the EEA national has resided, whether or not they had actually cohabited throughout that period.

KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 (IAC)
7th March 2011

The Upper Tribunal considered the accessibility and impact of South Korean nationality on the asylum claims of those from North Korea. They found, on the evidence, that North Korean nationals are nationals of South Korea, such South Korean nationality being acquired at birth under legislative provisions (and thus could be expected to avail themselves of such nationality before seeking international protection). However a North Korean national who was absent from Korea for more than ten years would not be able to obtain the indicia of South Korean nationality, despite his acquisition of that nationality by birth, as, lacking South Korean documents, they may lose his South Korean nationality by the presumption of having acquired another, and, as a result, will not be able to acquire South Korean documents on the basis of entitlement to them. Where a person's acquisition of nationality depends on the exercise of a discretion by the State whose nationality he seeks to acquire, he cannot be regarded without more as for the purposes of the Refugee Convention having the nationality in question. But, for the purposes of the Refugee Convention, where a person already has a nationality (even if he has no documents to that effect) that is the end of the matter: he is a national of the country concerned.

EM and others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC)
New country guidance for Zimbabwe found that though the situation was variable between different parts of the country, there is in general significantly less politically motivated violence in Zimbabwe, compared with the situation considered in RN. To read the full judgment, click here.

EN (Continuity of residence - family member) Nigeria [2011] UKUT 55 (IAC)
The Upper Tribunal (IAC) found that to acquire a permanent right of residence under reg. 15(1)(b) of the Immigration (European Economic Area) Regulations 2006, a family member of a Union citizen must show that both he and the Union citizen have resided in the UK in accordance with the Regulations for a continuous period of five years. To read the full judgment, click here.

MR and ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC)
Blake J. referred to the European Court of Justice questions on the correct interpretation of Art. 3(2) of the Citizens Directive 2004/83/EC. To read the full judgment, click here.

Changes to the Immigration Rules

HC 863 was laid before Parliament on the 16th March 2011. The statement of changes makes significant changes to Tier 1 and Tier 2 of the PBS. They also reduce the re-entry ban for those who voluntarily leave the UK promptly and at public expense and creates an entry route for the post-flight family members of refugees and those granted humanitarian protection. To read further, click here.

Training

If you want to learn more about the implications of Zambrano, then HJT Training is offering a short course to update you here - presented by European Union law guru Adrian Berry, and Colin Yeo. It is provisionally scheduled for 30th March, late afternoon, Central London, please contact their office for confirmation of the final details.

 

 

 

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