Immigration Law Bulletin - Issue 236 - 18 July 2011

Monday 18 July 2011

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News

The government announced a consultation on family migration, which proposes minimum income limits for sponsors; extending the probationary limit from two to five years before settlement; and limiting the right of appeal for family visitors. Click here for more information.

Cases

MT (Ahmadi - HJ (Iran)) Pakistan [2011] UKUT 277 (IAC)
The Upper Tribunal found that the HJ Iran approach to the circumstances in which suppression of one's identity might be persecutory applied in religious persecution cases. It was unsafe for an Ahmadi to relocate to Rabwah where he would either speak out, or be forced to take steps to ensure his own safety inconsistent with his beliefs and due to the threat of harm. Click here to read the full judgement.

Rose (Automatic deportation - Exception 3) Jamaica [2011] UKUT 276 (IAC)
The Tribunal considered EEA rights under the Citizens Directive and domestic law. Whilst finding that extended family members did not enjoy the protection of European Union law, such persons were entitled to receive a decision under the domestic EEA Regulations by which the Secretary of State had to exercise discretion before the Tribunal had jurisdiction to do so, and an automatic deportation decision was not in accordance with the law where this had not yet been done. Click here to read the full judgement.

Begum (EEA - worker - jobseeker) Pakistan [2011] UKUT 275 (IAC)

The Upper Tribunal stated it would be cautious before extending the Robinson duty to a judge dealing with a matter of private entitlement albeit within Community law. It also reiterated the law on the definition of workers and jobseekers. Click here to read the full judgement.

SA (Divorced woman- illegitimate child) Bangladesh CG [2011] UKUT 254 (IAC)
The Upper Tribunal found that a woman who was able to show that she was at a real risk of domestic violence on return to Bangladesh (to which there was no viable internal relocation alternative) may well be able to demonstrate that despite the efforts of the government to improve the situation of such women, on account of the disinclination of the police to act upon complaints of domestic violence, she would not be able to obtain an effective measure of state protection by reason of the fact that she was a woman. Whether a female returnee who has been divorced and who has a child born out of wedlock runs the risk of falling into the category of being abandoned will depend on the attitude towards her of her family and the likelihood of family support, which in turn will depend upon the facts of the particular case. The divorced mother of an illegitimate child without family support on return to Bangladesh would be likely to have to endure a significant degree of hardship but this would not necessarily be unduly harsh. Click here to read the full judgement.

Stanley Burnton LJ in the Court of Appeal in TE v Secretary of State for the Home Department [2011] EWCA Civ 811
In Stanley it was held that an application or appeal involving immigration rule 395C involved a process of weighing the liability to removal, and thus the maintenance and enforcement of sensible and effective immigration controls, against the largely personal factors which make it appropriate to allow the applicant to remain: he did not suggest that this was anything other than a balancing exercise. The same judge in Secretary of State for the Home Department v Rahman [2011] EWCA Civ 814 reversed the Administrative Court which had found that migrants eligible under the "seven years child concession" had something akin to an accrued right for consideration under it following its withdrawal: the Court of Appeal ruled that the Secretary of State had acted lawfully in withdrawing DP/5/96 and in determining the transitional provisions that she would apply, given it was inimical to immigration policy in that it acted as an invitation to parents whose immigration status was irregular not to seek to regularise their status, but to lie low until their children had been here for 7 years. The interests of the children of those seeking to remain here and their parents were adequately addressed by the provisions of the European Convention on Human Rights, and in particular article 8. Click here to read the full judgement.

FM v Secretary of State for the Home Department (Rev 1) [2011] EWCA Civ 807
The Court of Appeal found that the Secretary of State, by using the word "imminent" in the course of her detention policies, had not placed a restriction on the circumstances in which the power to detain would be exercised more onerous than that imposed by the Hardial Singh principle of reasonableness. Resolution of the question whether the time within which removal could be achieved was reasonable had to take particular regard to the circumstances of the family in question. The policy on malaria prophylaxis meant that the treatment should be offered before removal and once taken it must be given time to take effect, which was possible in a case where removal could take place within three to four weeks. Click here to read the full judgement.


R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1792 (Admin)

Kenneth Parker J in the Administrative Court in RT held that it was a serious failure regarding a victim of torture to fail to tell her that by expressing no wish to be examined medically, she was in fact jeopardising her position under Rule 34(1). Detention would be unlawful if, had a proper medical examination had taken place when it ought to have taken place, it would have revealed scars which, taking account of allegations of torture/abuse, would have made it more probable than not that the Claimant would at that point have been released from detention. Click here to read the full judgement.

English Speaking Board (International) Ltd, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 1788 (Admin)
Wyn Williams J in English Speaking Board v Secretary of State for the Home Department noted the Defendant's concession that implementing the changes to the Rules and Regulations regarding the accreditation of colleges that taught the language and life in the United Kingdom test was unlawful where they had failed to first consult the proposed accrediting bodies, at least as to their ability to undertake accreditation immediately after the coming into force of the changes. However the relevant rule would not be quashed, as it was not accepted that the effect of the Rule change has been to cause damage on a widespread scale: they had a proper rationale and were aimed at achieving a purpose, which on any view, was legitimate and desirable. Click here to read the full judgement.

Events

Human rights update course
HJT Training run a human rights update course in Manchester on Tuesday 19th July at The Palace Hotel, Oxford Street, 4pm onwards, presented by Rory O'Ryan. Click here for more information.

OISC Conference
On 20th July HJT holds, in London, its OISC Conference: a combined core and non-core CPD day which covers a full legal update on this year's developments in immigration law, plus effective networking strategies. Click here for more information.

The Secret of Success at the First Tier Tribunal
On 25th July Mavelyn Vidal runs her course The Secret of Success at the First Tier Tribunal, addressing practical tips on witness statements, expert witnesses, legal research, and the gathering of relevant evidence. Click here for more information.

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