Immigration Law Bulletin - Issue 191 - 2 August 2010

Monday 2 August 2010

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News

The government has announced its intention to abolish the "certificate of approval" scheme. A Remedial Order under the Human Rights Act 1998 has been laid in Parliament to achieve this aim. At present, any migrant who is already in the UK and is subject to immigration control must apply for a certificate of approval before they can get married or register a civil partnership in this country (unless they are getting married within the Anglican Church). The government is now seeking to remedy the declaration by the UK courts that the scheme is incompatible with Article 14 of the European Convention on Human Rights (read with Article 12). Click here to read more.

The investigation by the UK Border Agency Professional Standards Unit (PSU) into the allegations made by Louise Perrett about her experience working for the UK Border Agency in Cardiff concluded with a public report. The investigation found that all allegations were unsubstantiated except for the concerns about the "grant" monkey said to have been placed on the desks of those who granted an asylum claim: albeit it transpired, according to the enquiry, that the anthropoid was quite benign: "The investigation established that the 'grant monkey' was not used as a badge of shame as alleged however it accepted that its subsequent removal from the office was correct." Click here to read more.

Cases

PB and JS v Austria (Application no. 18984/02; 22 July 2010)
The Strasbourg Court found that it was artificial to take the view that a same-sex couple cannot enjoy "family life" for the purposes of Article 8. Given the rapid evolution of social attitudes towards same-sex couples that has taken place in many member States, the relationship of a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of "family life", just as the relationship of a different-sex couple in the same situation would.
Click here for the full judgment.

ZO (Somalia) & Ors, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 36 (28 July 2010)
Lord Kerr for the Supreme Court dismissed the Home Office appeal, and thus it remains the case that asylum seekers who have made a fresh asylum claim must be afforded permission to work on the same basis as new asylum applicants (i.e. after waiting a year for a decision on their application when the delay is not attributable to their own actions).
Click here for the full judgment.

Medical Justice, R (on the application of) v Secretary of State for the Home Department (Rev 1) [2010] EWHC 1925 (Admin) (26 July 2010)
The Administrative Court found the Home Office policy giving limited notice of removal directions to those facing expulsion was unlawful. There were no provisions which adequately safeguarded the right of access to the courts of people who received reduced notice of removal pursuant to the introduction of various exceptions introduced in early 2010 from the "72 hours notice" rule: such an obligation is essential to ensure that those detained have access to the courts. It was also necessary to quash those parts of the policy dealing with self-harm or unaccompanied children categories given there still had not been an Equality Impact Assessment under the DDA or the RRA.
Click here for the full judgment.

Mirza & Ors v Secretary of State for the Home Department [2010] EWHC 2002 (Admin) (30 July 2010)
Moses LJ, for procedural reasons sitting in the Administrative Court to allow a public law point to be conveniently tested due to its inappropriateness for the Court of Appeal, considered the question of whether the Secretary of State was duty bound to make removal directions and hence consider the discretion within rule 395C at the same time as making a variation application. He found there was no such legal obligation, despite the fact that there might be advantages so to do in some cases. He observed that TE Eritea decides that there was no legal inhibition against the Home Secretary or the Tribunal acceding to the appellant's wish expressed at the reconsideration stage that a decision as to removal directions should be made while the claimant remained lawfully in this country.
Click here for the full judgment.

TM (Zimbabwe) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 916 (30 July 2010)
Elias LJ in the Court of Appeal considered a challenge to the approach of a Tribunal with respect to the proper application of RN Zimbabwe. He reiterated the principle that the Tribunal must treat as binding any country guidance authority relevant to the issues in dispute unless there is good reason for not doing so, such as fresh evidence which casts doubt upon its conclusions, and that a failure to follow the country guidance without good reason is likely to involve an error of law, even where this might seem unsatisfactory given a rapidly changing political landscape. He added that the principle from the recent Supreme Court decision in HJ Iran (that discretion could not be expected of an asylum seeker with respect to the exercise of fundamental rights) was applicable to cases turning on political opinion as well as sexuality, while opining that whether or not an asylum seeker may reasonably be expected to dissemble will depend upon the nature and strength of his political beliefs: ultimately he ruled that a determination of this important question will have to wait until another day.
Click here for the full judgment.

Training

Full four day introduction to immigration law
From 6 September 2010 HJT Training will be running its full four day introduction to immigration law for LSC Level 2 and OISC Level 3 Accreditation purposes, offering a solid introduction to the main aspects of immigration and asylum law and practice, including general immigration law, the Points Based System, EC free movement law, nationality law, human rights law, asylum law and practice, criminal offences and other subjects. The course fee includes a copy of the freshly updated HJT immigration manual.
For full details, click here.

Judicial Review Conference
14 October 2010, Birmingham

A leading team from Garden Court Chambers will give an up-to-date overview of all aspects of judicial review together with practical advice on how to apply the law successfully.
For full details, click here.

 

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