Immigration Law Bulletin - Issue 185 - 14 June 2010

Monday 14 June 2010

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News

The coalition government is proposing to introduce compulsory English language tests from autumn 2010 for non-EU migrants applying to come to the UK to join or marry their settled partner. They will be compulsory for people applying from within the UK as well as visa applicants from overseas.
Click here to read more.
For criticism of this proposal, see The Guardian.

The UKBA has published an addition to the policy guidance for Tier 2 of the points-based system (version 04/10) clarifying the length of the permission to stay in the UK that may be given to all Tier 2 applicants, except those applying under the Graduate trainees and Skills transfer sub-categories of Tier 2 (Intra company transfer).
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Cases

A series of determinations issued by the Upper Tribunal - the most significant being:

MDB and others (Article 12, 1612/68) Italy [2010] UKUT 161 (IAC)
(i) The ECJ in Ibrahim and Teixeira confirmed that to confer on a child a right of residence, Article 12 of Regulation 1612/68 requires only that he has lived with his parents or either one of them in a Member State while at least one of them resided there as a worker; (ii) although simply seeking employment may be sufficient to make an individual a worker in EU law, it is not enough to engage Art 12, since this provision requires that the parent concerned is someone who is or has been employed in the territory of another Member State; (iii) if a parent meets the requirement of employment, then his child can acquire an Art 12 right of residence, but it can only start to run from the date he/she begins in education and cannot commence from the child's birth; (iv) on Baumbast principles, a child in education can continue to have an Art 12 right of residence even if the parent later ceases to be a worker; (v) in an EEA decision case the tribunal is obliged by 2002 Act, s.84(1)(d) to decide whether the decision breaches any of the appellants' rights under the Community Treaties in respect of entry to or residence in the UK; so where the decision is a refusal to issue a permanent residence card, this may necessitate, if that refusal is found correct, considering whether the appellant was entitled nonetheless to an extended right of residence.
Click here for the full judgment.

BN (Article 8 - Post Study Work) Kenya [2010] UKUT 162 (IAC)
The UT reversed the IJ's decision to allow on Art 8 grounds an appeal where the claimant's points based application was refused solely for failing to meet the £800 for three months requirement. The UT held that the IJ had failed to give proper weight to the public interest side of the balance and considered that Sullivan J's observations in R (Forrester) v SSHD [2008] EWHC 2307 (Admin) were not meant to enunciate a general proposition about Immigration Rules that are in non-discretionary form or to imply a view that any policy fitting this description could have no public interest weighting.
Click here for the full judgment.

CS (Tier 1 - home regulator) USA [2010] UKUT 163 (IAC)
The reference to home regulator in paragraph 96(iv) of the Tier 1 Guidance with respect to overseas financial institutions refers to the need for the institution to be regulated and not to the identity of the institution that provides the information about the account.
Click here for the full judgment.

SL (Certificate of entitlement - holds a passport) Malaysia [2010] UKUT 164 (IAC)
For the purposes of the regulations relating to certificate of entitlements, a person who has lost a passport and cannot retrieve or produce it does not "hold" a passport.
Click here for the full judgment.

FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC)
When a direct question is asked, and answered untruthfully, there is both a false representation and a non-disclosure; and it is not open to an Appellant who gives an untruthful answer to a direct question in an application form to say that the matter was not material.
Click here for the full judgment.

US and MV (PBS - applicants from same family) Malaysia [2010] UKUT 167 (IAC)
No proper basis for the SSHD to treat a valid application as invalidated by the presence in the same envelope of an invalid application by a member of the same family.
Click here for the full judgment.

MH (Respondent's bundle: documents not provided) Pakistan [2010] UKUT 168 (IAC)
Rule 13 of the First Tier Tribunal Rules requires an unpublished document to be supplied to the Tribunal if it is mentioned in the Notice of, or Reasons for Refusal, or if the Respondent relies on it. Because the Notice of, or Reasons for Refusal form the statement of the Respondent's case however, the Tribunal is likely to assume that a document mentioned in either, but not supplied to the Tribunal, is no longer relied on.
Click here for the full judgment.

AM and SS (PBS - Tier 1 - joint accounts) Pakistan [2010] UKUT 169 (IAC)
A joint account bearing the name of the applicant meets the relevant evidential requirements of paras 93-96 of the Tier 1 Guidance, so further evidence of the ownership of the funds in the account is not required.
Click here for the full judgment.

 

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