Immigration Law Bulletin - Issue 201 - 11 October 2010

Monday 11 October 2010

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News

The UK Border Agency has expanded its partnership working with local government by launching a new checking service for settlement applications. If a migrant is applying for settlement (also known as 'indefinite leave to remain') using application form SET(M), they can now have their application checked by a local authority officer before it is sent to the Home Office.
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Cases

N v Sweden (Application no. 23505/09)
The European Court of Human Rights (Third Section) found that women are at particular risk of ill-treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system, as may be the case where they have resided in Europe for several years, or sought to pursue a professional career, or disagreed with the way family life is conducted, especially where they have credibly sought divorce from their husband. Up to 80% of Afghan women are affected by domestic violence. Low social status and social stigmas deter women from going against their families to pursue justice, particularly in cases of domestic abuse, and for a woman even to approach the police or courts requires her to overcome the public opprobrium affecting women who leave their houses without a male guardian, let alone women who seek protection from public authorities.
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Lassal (European citizenship) [2010] EUECJ C-162/09 (07 October 2010)
The Court of Justice of the European Union answered the questions posed by the Court of Appeal favourably to the migrant in an important decision on permanent residence. For the purposes of the acquisition of the right of permanent residence provided for in Article 16 of Directive 2004/38, continuous periods of five years' residence completed before its date of transposition (30 April 2006), in accordance with the earlier EU law instruments, must be taken into account. Absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years' legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1).
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Mahazi (R on the application of) v Secretary Of State For The Home Department [2010] EWHC 2488 (Admin)
Dobbs J in the Administrative Court considered a challenge to the cessation of refugee status brought by way of judicial review. She found that given some perceived disadvantage as to the burden of proof in the Tribunal as opposed to the Administrative Court, the claimant was not barred from applying for judicial review by possession of an adequate remedy elsewhere.

Banda (R on the application of) v Secretary of State for the Home Department [2010] EWHC 2471 (Admin)
HHJ Pelling QC, sitting in the Administrative Court found that it was incumbent on the Secretary of State to investigate the availability of realistically alternative child care for the children in the event that they were orphaned or the children's parents became incapacitated from looking after them properly. It was irrational, in the public law sense, to certify a human rights claim by young children advanced by reference to the health issues of these parents without attempting to investigate these issues.

Qader (R on the application of) v Secretary Of State For The Home Department (3 August 2010) [2010] EWHC 2486 (Admin)
Pearl J in the Administrative Court considered, in the context of a challenge on grounds of unlawful detention arising from the documentary authority to detain, that under para 55.6.2 of the Home Office detention policy, an IS91 "is issued once and only once for any continuous period of detention, irrespective of how many retaining agents there are during the course of a person's detention".

AM (Pakistan) v Entry Clearance Officer [2010] EWCA Civ 1084
Aikens LJ granted permission to appeal to the Court of Appeal in an immigration appeal on the question whether the question of the validity of the appellant's second marriage should have been decided by reference to the lex loci celebrationis (the country of origin, in this case).

Ruiz Zambrano (European citizenship) [2010] EUECJ C-34/09 (30 September 2010)
In a radical opinion, Advocate General Sharpston in the CJEU opines that physical movement to a Member State other than the Member State of nationality is not required before residence rights as a citizen of the Union can be invoked. Articles 20 and 21 TFEU (formerly Articles 17 and 18 EC) are to be interpreted as conferring a right of residence in the territory of the Member States, based on citizenship of the Union, that is independent of the right to move between Member States. Those provisions do not preclude a Member State from refusing to grant a derived right of residence to an ascendant relative of a citizen of the Union who is a national of the Member State concerned and who has not yet exercised rights of free movement, provided that that decision complies with the principle of proportionality. Article 18 TFEU (formerly Article 12 EC) should be interpreted as prohibiting reverse discrimination caused by the interaction of Article 21 TFEU with national law that entails a violation of a fundamental right protected under EU law, where at least equivalent protection is not available under national law.
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Training

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 including how it can be used in immigration proceedings, together with practical advice on how to apply the law successfully.
For full details, click here

Update: recent developments in immigration law
14 October 2010 (central London, 4pm - 7.15pm)

Sonali Naik of Garden Court Chambers and David Chirico of Pump Court Chambers present a course updating delegates on developments in immigration law generally.
For full details, click here

The Equality Act and Disability Discrimination
18 October 2010

Organised by HJT Training
For full details, click here

Domestic Violence Applications
18 October 2010

A course on domestic violence applications, addressing strategies and evidence for pursuing claims, including emotional abuse: there will be a full review of the case law and policies.
For full details, click here

 

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