Immigration Bulletin - Issue 221 - 28 March 2011

Friday 25 March 2011

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News

Hungarian Foreign Minister Janos Martonyi, the current holder of the EU presidency, states that Western air strikes on Libya have averted a refugee crisis that could have seen hundreds of thousands of Libyans flood into Egypt. To read further, click here.

Meanwhile, International agency Oxfam welcomed the visit of UN High Commissioner for Refugees, Antonio Guterres, to Liberia, as it called on the international community to pay greater attention to the worsening refugee crisis in the country, with an estimated 46,000 refugees fleeing into Liberia in the last month, as a result of the political violence in the Ivory Coast. To read further, click here.

The government is seeking to opt in to a Europe-wide effort to help human trafficking. To read further, click here.

Two immigration detainees have been awarded nominal damages of £1 each for being illegally imprisoned for two years under a secret policy operated by the Home Office. To read further, click here.

Immigration minister, Damian Green reiterates the government's commitment to a crackdown on sham marriages as reports by registrars rise. To read further, click here.

Despite opposition from the Home Affairs Select Committee, the Home Secretary Theresa May has announced stricter rules for the student visa system. Among the changes are tougher entrance criteria, limits on work entitlements and the closure of the Tier 1 post-study work route. To read further, click here.

Cases

WL (Congo) and KM (Jamaica) v SSHD [2011] UKSC 12
The Supreme Court considered whether public law breaches rendered detention unlawful for foreign national prisoners pending their deportation. The Court upheld the legality of the Secretary of State having a policy as to whether or not to detain FNPs pending their deportation, provided that the requirements of public law and Article 5 of the European Convention on Human Rights are upheld. It was unlawful for the Secretary of State to maintain an unpublished policy that was inconsistent with her published policy, and which applied a near blanket ban on the release of FNPs. Breach of a public law duty on the part of the person authorising detention was capable of rendering that detention unlawful and did render it unlawful in this case. By a majority, the court held that the fact that the appellants would have lawfully been detained in any event did not affect the Secretary of State's liability in false imprisonment; by another majority group of judges, that the fact that lawful detention might have been possible was relevant to damages rather than to liability. Absent actual loss, they should recover no more than nominal damages of £1: and to no exemplary damages.

DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305
22 March 2011

LQ (age: immutable characteristics) Afghanistan remains unchallenged by the Secretary of State who conceded that the appellant, as an orphan child, was a member of the social group identified in LQ and was at risk in the absence of adequate reception facilities in Afghanistan. Therefore the issue for the Court of Appeal concerned the role of the Secretary of State when an unaccompanied minor claims asylum and whether the Tribunal was entitled to infer that adequate reception facilities were available. The court firmly rejected the respondent's contention that the Secretary of State was entitled to do nothing by way of tracing enquiries in relation to the minor's family. The need to evaluate the best interests of the child as a primary consideration in immigration decision making was not confined to Article 8(2) considerations - the Reception Directive and its domestic transposition (by virtue of Regulation 6(1) of the 2005 Regulations) impose a plain duty on the Secretary of State to endeavour to trace the members of the minor's family. The court also underlined the need, under section 55, to safeguard and promote the welfare of children in the United Kingdom. Whilst acknowledging the difficulties in the making of enquiries, the court held that inactivity was not a permissible option. To read the judgment, click here.

MS (Algeria) v Secretary of State for the Home Department [2011] EWCA Civ 306
22 March 2011

This appeal by MS from a decision of SIAC is another in a long line of cases concerning persons whom the Secretary of State has determined to remove to Algeria on the ground of national security for whom the Algerian government has provided assurances. The Court of Appeal rejected grounds of appeal challenging the lawfulness of the application DWA programme to MS, the validity of, and the verification of, the assurances. On the issue of verification, the court held that this case did not differ from RB (Algeria), where the House of Lords, applying the ECtHR decision in Saadi, held that the sufficiency and effectiveness of assurances are questions of fact in all the circumstances and that there is no rule of law requiring external monitoring. The court held that the ECtHR decision of Ben Khemais had no bearing on the continuing authority of RB (Algeria), nor on the appropriateness of the present SIAC applying it in the matter of verification of assurances. To read the judgment, click here.

Rozo-Hermida, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 695 (Admin)
23 March 2011

Mr Justice Bean, in the Administrative Court, considered the Secretary of State's refusal to transfer the claimant - liable to deportation - from prison to an Immigration Removal Centre, following the expiry of the custodial part of his sentence. The court held that an individual assessment is always required and that a blanket ban on the transfer of particular types of offender is inconsistent with such a requirement and is irrational and unlawful. The fact that the claimant was put on the sex offenders' register for an indefinite period did not mean that in the view of the sentencing judge he would pose a permanent risk of harm to women as the judge has no discretion in this matter. To read the judgment, click here.

BE, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 690 (Admin)
23 March 2011

Mr Stephens Moss QC (sitting as a judge of the High Court) considered the lawfulness of the claimant's detention for a total of just over 29 months, applying the well-established Hardial Singh principles. He concluded that the escalation in relation to the claimant's disability issues tipped the balance into unlawfulness, finding that in these circumstances the elapsed period of detention was itself unreasonable and in any event, when set against the increased weight of the factors favouring release, the prospect of removal was no longer sufficient. To read the judgment, click here.

Legislation

The Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2011 No. 544 sees the end of the Worker Registration Scheme, which applied to workers from Poland, Latvia, Slovakia, the Czech Republic, Lithuania, Slovenia, Estonia or Hungary (A8 workers). The end of the WRS means that from 1 May 2011, if you intend to employ an A8 worker you will no longer have to check that they are registered with the UKBA under the WRS or keep copies of the relevant documentation eg WRS application form/registration certificate. To read further, click here.

Training

On 31st March, late afternoon, Central London, HJT Training is offering a course on Section 55 of the Borders, Citizenship and Immigration Act 2009, presented by Colin Yeo. Section 55 profoundly changes the way that cases involving children and/or parents should be handled by the Home Office and this course is essential for anyone running deportation or family life cases or those representing children. On 30th March, HJT runs a course on one of the pressing issues of the day: Zambrano and its radical effect on the entitlement to remain of EEA national minors.

ILPA is putting on a course on "April 2011 and beyond: points, caps and settlement" about the changes to Tier 1 and Tier 2 to be introduced on April 6 2011. This is taking place on Wednesday 30 March 2011, 4 - 7.15pm, with speakers Sophie Barrett-Brown of Laura Devine Solicitors and Nichola Carter of Penningtons Solicitors LLP.

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