Immigration Law Bulletin - Issue 226 - 9 May 2011

Monday 9 May 2011

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Okafor & Ors v Secretary of State for the Home Department [2011] EWCA Civ 499
Thomas LJ in the Court of Appeal reiterated that if a person no longer has a right to reside in the UK, the fact that the Secretary of State has not cancelled the document which initially granted that right cannot establish a right of lawful residence under national law. The rights of permanent residence are acquired through the rights of residence conferred through Chapter 3 which deals with the acquisition of rights of residence which form the basis for the right of permanent residence. Neither Article 12(3) nor Article 16 of the Citizens Directive confers any right to permanent residence beyond this. For the judgment, click here.

MD (China) & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 453

The President of the QBD giving judgment of the Court of Appeal noted that in cases of delay in administrative process, there will only be an infringement of Article 8 where the consequences for the complainant are serious or amount to causing him serious prejudice. There might be circumstances where inviting the court to declare that a person's Article 8 rights have been violated is justified by a legitimate need to establish that and for vindication. In general continuation of proceedings was pointless and disproportionately expensive where status papers have long since been issued, the Secretary of State has openly accepted that the delay was unacceptable maladministration and has apologised without reservation, steps have been taken to rectify the administrative deficiencies which led to the delays, and where a properly structured complaints procedure is available and has been set in motion to assess compensation. For the judgment, click here.

RS (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 434
Baron J in the Court of Appeal recorded the Secretary of State's position that a student's re-entry for the purpose of a re-sit was not only acceptable but was customarily accepted under the terms of Rule 56K. A student present with a view to resitting exams does not qualify for leave under the student rules otherwise because he is not engaged either in a full-time course or on a course that involves a minimum of 15 hours per week of daytime study. For the judgment, click here.

ZZ v Secretary of State for the Home Department (Rev 1) [2011] EWCA Civ 440
The Court of Appeal referred this question to the Court of Justice of the European Union: "Does the principle of effective judicial protection require that a judicial body considering an appeal from a decision to exclude a EU citizen from a member state on grounds of public policy and public security under chapter VI of Directive 2004/38 ensure that the EU citizen concerned is informed of the essence of the grounds against him, notwithstanding the interests of state security?". For the judgment, click here.

Molla (established presence - date of application) Bangladesh [2011] UKUT 161 (IAC) (03 May 2011)
The Upper Tribunal considered the question under the immigration rules of the Points Based System the meaning of established presence. To show such a present, a student had to show that at the date of application they had been studying in the UK within the last four months and that either: (1) during his last period of leave he had completed a single course of at least six months; or (2) he was applying for continued study on a course where he has completed at least six months of that course and has been studying within the last four months. For the judgment, click here.

NXT, R (on the application of) & Ors v Secretary of State for the Home Department [2011] EWHC 969 (Admin)
Blair J in the Administrative Court found, regarding unlawful detention, that once the Children's Champion had expressed the view that release was appropriate, because all appropriate enquiries had been made and showed that a parenting assessment conducted in the community was required before deportation without a parent's children should proceed, there came a time when it became apparent that the defendant would not be able to effect a Claimant's deportation (with or without the children) within a reasonable period: in these circumstances detention for over seven months became unreasonable. For the judgment, click here.


On Thursday 12th May from 4 to 7pm at Cutlers Court, 3rd Floor, 115 Hounsditch, London EC3A 7BR (nearest station Liverpool Street), HJT Training run their course Essential immigration for education providers and students, tailored to educational establishments and migrant students aimed at providing an understanding of how current immigration legislation effects organisations and their student population. For further details, click here.

On Monday 16th May HJT follows up with Points Based System Rebooted charting major recent developments in the points Based System For further details, click here.

Judgment at Nuremberg by Abby Mann, will be playing from 6-9th July 2011 at the Tricycle theatre featuring a company of legal professionals. For further details, click here.


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