Immigration Law Bulletin - Issue 184 - 1 June 2010

Tuesday 1 June 2010

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Refugee and Migrant Justice (formerly the Refugee Legal Centre) faces closure due to a shortfall in payments from the Legal Services Commission, linked to the length of time it takes for payments to be made. A Ministry of Justice spokesman said: "If RMJ fails, we accept that there will be some disruption while their clients look for help from another adviser. However, LSC believe that capacity will not be adversely affected as clients and caseworkers will be able to transfer to other organisations, as has happened in similar situations."
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AT (Pakistan) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 567 (26 May 2010)
Hooper LJ in the Court of Appeal held that Parliament intended that section 32 would apply to any person convicted after the passing of the Act and before it came into force, unless the Secretary of State by statutory instrument ordered otherwise, which he did not do. Contrary to the view of some clients, he also explained that automatic deportation under the 2007 Act is not a "penalty" for the purposes of Article 7, for "a measure of this kind taken in pursuance, not of the criminal law but of the law on aliens is not in itself penal in character", as stated by the European Commission in Moustaquim. The fact that automatic deportation will prevent re-offending by a foreign criminal in this country suggests that the measure can properly be categorised as preventive rather than punitive for the purposes of Article 7.
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Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 (27th May 2010)
Sedley LJ in the Court of Appeal found that it is not for either the Home Secretary or the Tribunal to reappraise the offending behaviour so as to either inflate or diminish the judicial evaluation of it - matters relevant to sentence such as the likelihood of reoffending may also be relevant to deportation. As to human rights and ECHR Art 8, the number of years a potential deportee has been here is always likely to be relevant; but what is likely to be more relevant is the age at which those years began to run: life here as an adult is not the same as life spent here as a child, and the difference between the two may amount to the difference between enforced return and exile.
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Secretary of State for the Home Department v Boahen [2010] EWCA Civ 585 (28 May 2010)
Pitchford LJ in the Court of Appeal had to unravel the complex legal provisions that address cancellation of entry clearance and subsequent treatment of an application for leave to enter for a person with advance leave to enter. He concluded that an immigration officer faced with a visa holder who intended to enter in breach of his stated purpose, whether knowingly or not, was required to make a judgment under paragraph 2A(2) of Schedule 2 to the 1971 Act and paragraph 321A(1) of the immigration rules, as to whether that fact was such a change of circumstances, that in the interests of proper immigration control, his leave should be cancelled, ie whether the entry clearance should continue, or the visa holder should be required to make a further application; this in turn required an assessment from the immigration officer of all the circumstances including, for example, whether there remained a continuing legitimate purpose for the visa holder's visits with which the visa holder could and should be entrusted for the remainder of the period of validity. Flagging up the ongoing need for Simplification, Thomas LJ observed that "the complexity of the task that he has undertaken demonstrates, if further demonstration was needed, the urgent need to simplify and write in plain English the relevant regulations and other provisions. It cannot be right that officials of the UK Border Agency are required to try and understand and make sense of provisions that are so arcane and poorly drafted."
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2010: The Story so far
Thursday 10 June 10:00-17:00
1 Liverpool Street, London EC2M 7QD

HJT Training are holding a comprehensive update course on developments in late 2009 and so far in 2010, including:

  • The impact of the Borders, Citizenship and Immigration Act 2009
  • Changes to the Immigration Rules
  • Changes to the Points Based System
  • The growing number of automatic refusals under rules 320 and 322
  • The operation of the new tribunal system
  • Important case law developments in immigration, asylum, human rights and European Community law

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ILPA annual seminar on free movement of EEA nationals
9 June

We see the return of ILPA's annual seminar on the implementation of Directive 2004/38/EC, the 'Free Movement' or 'Citizen's' Directive, addressing decisions from the UK as well as the European Court of Justice, on retained rights of residence; the new regulations on expulsion of EEA nationals and family members, and, of course, the implementation of Metock, processing times and procedures.
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