Immigration Bulletin – Issue 358 – 12 February 2014

Wednesday 12 February 2014

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Immigration Law News

The lessons of Morecambe Bay have not been learned - ten years after the cockle pickers tragedy, we are still focusing on the arrival of migrants, not their rights. To read more, click here.

Immigration Minister Mark Harper quits over illegal cleaner. To read more, click here.

Gay asylum seekers face humiliation. To read more, click here.

Immigration Law Cases

Sxh v Crown Prosecution Service [2014] EWCA 90

This case concerned an asylum seeker's prosecution for producing false identification documents on entry to the United Kingdom contrary to the Identity Cards Act 2006 s.25, did not engage her Article 8 right under the European Convention on Human Rights 1950.

The appellant was a Somalian asylum seeker from a minority clan who had suffered persecution and sexual violence. In 2008, she fled to Yemen and, a year later, she travelled to the United Kingdom with an agent, who provided a travel document (not in her name) for her to enter the UK.

She was arrested and charged with an offence under the Identity Cards Act 2006 s.25. She pleaded not guilty relying on the Article 31 defence as set out under the Immigration and Asylum Act 1999 s.31(2) and was remanded in custody.

After several months she was granted asylum and it was accepted that it was reasonable for her to have claimed asylum in the Yemen. The prosecution was discontinued on the basis that it was accepted that she could rely on the statutory defence and that in any event it was not in the public interest to prosecute.

She brought a claim for damages on the basis that the decision to prosecute her breached her rights under Article 8 of the European Convention on Human Rights by failing to properly consider the public interest at the outset.

Her claim was dismissed, it being held that the s.25 offence did not itself constitute an interference with private life as it had no effect on her ability to claim asylum in the UK.

Notwithstanding this, it was accepted though that there could be circumstances in which a decision to prosecute engaged Article 8, even when the offence charged did not itself constitute an interference with private life. For example, if a prosecutor was aware of the facts that provided a suspect with an unanswerable statutory defence, a decision to prosecute would not only be perverse but might also constitute an interference with Article 8. A decision to prosecute a dying person might also constitute a disproportionate interference with Article 8. However, short of extremes such as those mentioned, it was difficult to imagine circumstances in which a decision to prosecute for a Convention-compliant offence could be undermined on Article 8 grounds. If that conclusion was incorrect, it was held that the decision to prosecute was "in accordance with the law and ... necessary in a democratic society". For the full judgment, click here.

Zimin v Russia 48613/06 - Chamber Judgment [2014] ECHR 117 (6 February 2014)

The Court held that a complaint alleging that his detention pending investigation and trial was unlawful was inadmissible. For the full judgment, click here.

JM, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4430 (Admin) (4 February 2014)

The Administrative Court rejected a claim for unlawful detention of an Iranian national who challenged his detention of 15 months in prison. The Court found that there continued to be a risk of reoffending and absconding. It was noted on the evidence presented to the Court that there was a realistic prospect of removal to Iran because of the establishment of new arrangements between the UK and Iran for the return of undocumented Iranian nationals. For the full judgment, click here.

Immigration Law Events

Public Access Training
Tuesday 18 February, 09:30 to 18:30, London
CPD Hours: 12
HJT runs its course on public access for the Bar covering all aspects of the subject that the Bar Council and BSB require that practitioners are familiar with. For more information, click here.

Immigration Law Books

Garden Court Chambers Immigration Team members are authors of numerous books which we mention from time to time.

Immigration Practice and Procedure in Family Proceedings
This practical new work by Nadine Finch, Omar Shibli, Anthony Vaughan concentrates on the immigration procedures, law and rules relevant to family proceedings. Price: £60.00. For full details click here.

Asylum Law and Practice (2nd edition)
The second edition of Asylum Law and Practice by Mark Symes and Peter Jorro has been published. Price: £138.00. For full details click here.

Fransman's British Nationality Law (3rd edition)
The third edition of Fransman's British Nationality Law, written by Laurie Fransman QC and with contributions from Adrian Berry and Alison Harvey, was published in spring 2011. Price: £295.00. For full details click here.

Macdonald's Immigration Law & Practice (8th edition)
The eighth edition of Macdonald's Immigration Law & Practice was written by Ian Macdonald QC with contributions from many members of the Garden Court Immigration Team. Price: £230.00. For full details click here.

Human Trafficking Handbook
Nadine Finch has contributed to the Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK. Price: £36.00. For full details, click here.

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