Immigration Law Bulletin - Issue 192 - 9 August 2010

Monday 9 August 2010

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News

It is understood that changes to the Schengen visa system announced with immediate effect on 2 August 2010 mean that for a Schengen visa to be valid it must now be endorsed in a current passport. Travel is not permitted if the Schengen visa is in an expired passport even if it is still valid. In effect the visa ceases to be valid the moment the passport expires. In such cases the applicant will need to apply for another visa.

The opening of two new wings at Harmondsworth immigration removal centre will make it Europe's largest, Immigration Minister Damian Green announced on 2 August. Click here to read more.

New guidance has been published by UKBA to help UK employers understand the (employability) status of asylum seekers, refugees and those with humanitarian protection. Click here to read more.

Cases

R (Cart) v Upper Tribunal [2010] EWCA Civ 859
The CA upheld the Divisional Court's judgment ([2009] EWHC 3052 (Admin)) in so far as the DC had held that the Upper Tribunal is only amenable to judicial review in the High Court on grounds of 'outright excess of jurisdiction' or 'denial of procedural justice', while rejecting Laws LJ's (in the DC) description of the UT as the alter ego of the High Court. The CA also held that the scope of judicial review available in relation to any amenable decision-making body is necessarily a matter of law (and not of judicial discretion).
Click here for the full judgment.

R (ZA (Nigeria) & SM (Congo)) v SSHD [2010] EWCA Civ 926
The CA again upheld the Divisional Court's judgment ([2010] EWHC 718 (Admin)) to the effect that the fresh claim procedure in immigration rules HC 395, para 353 does apply to all subsequent asylum and human rights claims in circumstances where a new type of immigration decision (as per 2002 Act, s.82(2)) is not required.
Click here for the full judgment.

W (Algeria) & Ors v SSHD [2010] EWCA Civ 898
The CA held that: (1) appellants before the Special Immigration Appeals Commission are not entitled to any procedural protection akin to the 'closed evidence' procedure available to the SSHD's witnesses and evidence (the court noting inter alia that there is no provision for a special advocate to protect the SSHD's interests); (2) (unlike in control order cases, which are subject to Art 6, ECHR) there is no irreducible minimum of information that has to be provided to appellants in proceedings before SIAC about the risk they pose to national security.
Click here for the full judgment.

Batista v SSHD [2010] EWCA Civ 896
The CA, in remitting an appeal because the AIT had erred in law in applying an 'insurmountable obstacles' test to the question of whether the Portuguese appellant's British girlfriend could accompany him to Portugal on his deportation owing to convictions for burglary and GBH, also held that as common sense suggests a degree of shared interest between the EEA countries in helping those deemed sufficiently dangerous to justify deportation to progress towards a better form of life, the prospects offered by the appellant's relationship with his girlfriend in the UK as against the lack of such relationship in Portugal, was a relevant factor to be taken account of in the proportionality balance.
Click here for the full judgment.

R (Jisha) v SSHD [2010] EWHC 2043 (Admin)
HHJ Thornton QC held that a human rights claim made on an appeal and consequent to a one-stop notice (but not previously made to the SSHD) does constitute a 'human rights' claim both for 2002 Act, s.113(1) (the notice of appeal was served on the AIT and then, by the AIT, on the SSHD) and HC 395, para 353 (fresh claims - relevant to a subsequent human rights claim) purposes.
Click here for the full judgment.

R (TR) v Asylum and Immigration Tribunal [2010] EWHC 2055 (Admin)
HHJ Thornton QC, in quashing the AIT's decision to refuse the claimant an extension of time for lodging an appeal and in extending such time himself, gave guidance, with reference to BO (Extension of time for appealing) Nigeria [2006] UKAIT 00035, as to how extensions of time for appealing to the Tribunal should be applied for.
Click here for the full judgment.

KD (Inattentive Judges) Afghanistan [2010] UKUT 261 (IAC)
The UT held that the parties to an appeal are entitled to expect the judge both to be alert during the hearing and to appear to be so. Consequently, if a judge actually falls asleep or gives the appearance of not giving the appeal his full attention, there may be grounds for setting aside the determination on the basis that there has not been a fair hearing. However, when such a ground of appeal is raised, it is only likely to succeed if there is cogent evidence of the actual or apparent behaviour in question; and it is preferable for any concern about the behaviour or inattention of the judge to be raised at the hearing.
Click here for the full judgment.

Training

Judicial Review Conference
14 October 2010, Birmingham

An up-to-date overview by Garden Court barristers of all aspects of judicial review together with practical advice on how to apply the law successfully.
Click here to book your place.

Full four day introduction to immigration law
Four day introduction to immigration law from 6 September 2010 by HJT Training.
For full details, click here.

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