Immigration Law Bulletin - Issue 232 - 21 June 2011

Tuesday 21 June 2011

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Sultan of Pahang, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 616 (25 May 2011)
The Court of Appeal found that Pahang is not a State for the purposes of the State Immunity Act 1978. There was no room for some residual common law category of a person who is not a head of state as defined by the SIA but who would otherwise be recognised as a head of state by the common law for the purposes of, inter alia, immigration control. The Court could not question a certificate (subject to its being sufficiently clear and unequivocal) as to the identity of a head of state: that matter was for the executive.
For the judgement, click here.

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) (27 May 2011)
The Administrative Court considered delay in responding to a successful entry clearance appeal by the entry clearance officer. The Court was unimpressed by silence from an entry clearance post and drew adverse inferences from it. As a matter of public law, the Defendant was under the following duties: i) to consider the re-submitted application; ii) at the very least, to do so within a reasonable time; iii) in doing so, to apply its own internal guidance, unless there was good reason to depart from that guidance; iv) applying the Guidance at the relevant time, to consider the application as quickly as possible; v) both under the Guidance and as a matter of general law confirmed in Rahman, to grant the application as quickly as possible unless one of the four exceptional circumstances applied. There was no common law duty of care owed as to consideration of the application given this was a case that involved the exercise of a power rather than a duty. The right to possession of his passport is sufficient to give its holder title to sue for conversion in tort, though there would be no parallel claim in human rights law: although a passport is not property for the purposes of ECHR Protocol 1 Article 1; and there was no interference with private life in retaining a passport where in consequence its holder only suffered a hampering of their ability to work.
To read the judgement, click here.

Westech College, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin) (13 June 2011)
The judge found that bearing in mind the risk of migrants seeking to avoid immigration control, it is only right that first UKBA should have stringent powers to suspend a sponsor or prevent it from taking more students or terminating their sponsorship if it became concerned that a sponsor was not complying with its obligations and second that UKBA has to be sensitive to any factors which might suggest the possibility of any breaches of immigration control having occurred or being about to occur because of lapses or omissions committed by a sponsor. There is no need for UKBA to wait until there has been breach of immigration control caused by the acts or omission of a sponsor before suspending or revoking the sponsorship, but it can, and indeed should, take such steps if it has reasonable grounds for suspecting that a breach of immigration control might occur, provided of course that UKBA complies with its public law duties.
For the full judgement , click here.

Osman v Denmark 38058/09 [2011] ECHR 926 (14 June 2011)
The European Court of Human Rights, in the case found that due consideration should be given to cases where a parent has achieved settled status in a country and wants to be reunited with her child who, for the time being, finds himself in the country of origin, and that it may be unreasonable to force the parent to choose between giving up the position which she has acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other's company. In respecting parental rights, the authorities cannot ignore the child's interest including its own right to respect for private and family life, and its view as to decisions made by its parents. A failure by a parent to visit the child abroad and very limited contact for four years could be explained by various factors, including practical and economical restraints, and could not lead to the conclusion that the applicant and her mother did not wish to maintain or intensify their family life together. Where legislation had changed to make return more difficult, whilst the Court did not question its provisions, the fact that its provisions could not have been foreseen by affected individuals was relevant to the proportionality balance.
To read the judgment, click here.


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