Immigration Law Bulletin - Issue 227 - 17 May 2011

Tuesday 17 May 2011

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News

Activist wins legal aid battle in the High Court against legal aid cuts. To read more, click here.

Noam Chomsky: My reaction to Osama Bin Laden's death. 6 May 2011. To read more, click here.

Detained Chinese artist Ai Weiwei has been allowed first contact with family since his arrest more than 40 days ago. To read more, click here.

Case Law

Godwin Oche Amos v SSHD: Emilia Amanda Theophilus v SSHD [2011] EWCA Civ 552
A divorced spouse had to establish that s/he had the right of permanent residence before the question whether, notwithstanding the divorce, it had been retained by virtue of Directive 2004/38, Art.13 could be determined. For the judgment, click here.

AP (Trinidad and Tobago) v SSHD [2011] EWCA Civ 551
P had lived in UK since he was a very young child (3/4) years and was subsequently granted Indefinite Leave to remain in 2000. As a young adult he was sentenced to 18 months for possession of class A drugs with intent to supply. He had other previous criminal convictions. The SSHD ordered deportation. P successfully appealed to the AIT which found that the decision to deport was disproportionate. Reconsideration was ordered on the basis that the first tribunal had erred in law by insufficiently taking into account N (Kenya) and OH (Serbia). The Upper Tribunal made a second determination and found that P's removal was not disproportionate to P's Article 8 ECHR rights. The Court of Appeal held that the First Tribunal had "struck a fair balance between rights of the individual and the community" and had taken into account the relevant law. Its decision therefore could only be attacked on grounds of perversity. On reconsideration the AIT had not categorised the decision as perverse and nor had SSHD.
The Court of Appeal found that the first determination had not been vitiated by an error of law so the second determination could not stand. For the judgment, click here.

R (NAB) v SSHD [2011] EWHC 1191 (Admin Court)
This is not a very helpful case on damages. The Administrative Court considered the position of an Iranian national who "chose" detention in UK over "freedom" in Iran. The Court found that the Iranian national should have been deported to Iran but had "persistently and in a determined fashion refuse to sign documents which the Iranian authorities held to be necessary before they would accept his return". The Court found some of his detention lawful but accepted that there had been "inactivity and drift" on the part of the Secretary of State which rendered some but not all of his detention unlawful. The Administrative Court found that whilst the choice to be in detention in the UK over freedom in Iran did not impact upon the illegality of detention it did affect the appropriate level of damages to be awarded which would be lower than reported cases and lower than the case of Evans. Court awarded £75.00 a day for 82 days totalling £6150. For the judgment, click here.

R (on the application of Mjemer) v SSHD QBD (Admin Court) 12 May 2011 (unreported)
Although an immigration detainee posed a moderate to high risk of absconding and a moderate risk of re-offending if released from detention before being deported, when the fact that he had been detained for over two years and four months, the likelihood that he would not be deported within a reasonable time-frame, and the effect on him of detention was taken into account, his continued detention was unlawful.

 

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