Immigration Law Bulletin - Issue 233 - 27 June 2011

Monday 27 June 2011

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News

UKBA is setting up new arrangements for skilled workers who came here under work routes that have now closed, so that they can extend their stay in the UK to a total of 5 years. To read further, click here.

Cases

R (Cart) v Upper Tribunal; R (MR (Pakistan)) v UT & SSHD [2011] UKSC 28 (22 June 2011)
The SC held (uncontroversially by this stage) that an UT decision refusing permission to appeal to itself from a determination of the FTT (including in an asylum case as per MR (Pakistan)) is amenable to judicial review in the High Court and that the CA's approach in Cart was too restrictive in requiring 'outright excess of jurisdiction' or 'denial of procedural justice'. Rather the test to be applied by the High Court on such a judicial review application should be akin to the 'second appeals test' in that the appeal (or here JR claim) raises an important point of principle or practice or there is some other compelling reason for the court to hear it. To read the judgment, click here.

Eba v Advocate General for Scotland [2011] UKSC 29 (22 June 2011)
The same approach - akin to the second appeals test - applies to judicial review applications made to the Court of Session (Outer House) against UT refusals of permission to appeal to itself in Scotland. To read the judgment, click here.

IR (Sri Lanka) & Ors v SSHD [2011] EWCA Civ 704 (21 June 2011)
The procedural requirements of Article 8 do impact on a case of deportation or exclusion for national security reasons (assuming that there is an interference with family or private life) but they do not equiparate with the procedural requirements of Article 5 or Article 6. They have the more limited content set out in the Al-Nashif v Bulgaria (2003) 36 EHRR 37 line of authority. The procedure in SIAC, as developed in the domestic jurisprudence, satisfies those requirements. To read the judgment, click here.

Cvetkovs (visa - no file produced - directions) Latvia [2011] UKUT 00212 (IAC)
The UT held that IJs should be robust in cases where an ECO refuses a visit visa application because allegedly only limited / inadequate documents were produced but then breaches Procedure Rules by failing to send the documentation to the Tribunal - directions can be given indicating that unless the respondent complies with the rules it may be that the Tribunal will assume that the appeal is unopposed. Where the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, and the FTT issues a reasoned decision, based on the material before it, allowing the appeal, a challenge by the respondent based on sufficiency of reason is unlikely to prosper on an application for permission to appeal to the UT. To read the judgment, click here.

Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC)
UT held (1) IJs have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law for want of fairness. (2) Where a (college) sponsor licence has been revoked by the SSHD whilst an application for variation of leave is pending and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the SSHD should afford the applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined because (3) it would be unfair to refuse an application without opportunity being given to vary it under 1971 Act, s 3C(5). (4) Leave to remain granted by 1971 Act, s 3C is relevant leave for the purposes of the Immigration Rules (see QI (Pakistan) v SSHD [2011] EWCA Civ 614, 18 April 2011). (5) Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application. (6) By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked, a 60 day period to amend the application would provide such a fair opportunity. To read the judgment, click here.

Training

Nationality Law Update
Wednesday 29 June 2011, London, 4-7pm HJT. For further information, click here.

 

 

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