Immigration Law Bulletin - Issue 237 - 25 July 2011

Monday 25 July 2011

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UKBA announces the 'opening' of the new Tier 1 (Exceptional talent) category on 9 August 2011. There is to be a limit of 1,000 places in the first year of operation, with 500 places available between the 9 August and 30 November and a further 500 places available from the 1 December to 31 March 2012. The number of places will be reviewed at the end of March 2012. To read further click here.

Legislative Changes

Section 53 of the Borders, Citizenship and Immigration Act 2009 - transfer of certain immigration judicial review applications - will come into force on 8 August 2011, amending inter alia Senior Courts Act 1981, s 31A and paving the way for judicial review challenges to refusals by the Secretary of State to accept that a fresh asylum and or human rights claim has been made as per immigration rules, para 353, to be heard by the Upper Tribunal. Click here to read the 2009 Act, Commencement No 2 Order, SI 2011/1741.


Secretary of State for Work and Pensions v Dias (Case C-325/09; 21 July 2011)
In the case of a Portuguese national who wished to claim income support in the UK, the Court of Justice of the European Union held that a residence permit issued under Directive 68/360/EEC (of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families - being the Directive under which the claimant had been issued with a residence permit, in May 2000, prior to implementation of the 'Citizens Directive' 2004/38/EC on 30 April 2006) was purely declaratory, as opposed to constitutive, of rights under the Treaties and that accordingly the mere fact that a person holds such a valid residence permit does not mean that his or her residence is legal within the meaning of EU law, eg for the purposes of acquiring the right to permanent residence under Art 16(1) of Directive 2004/38. However the Court also held that such periods of non-legal residence whilst remaining in the host Member State should be treated analogously with periods of absence from that State for the purposes of Art 16(4) ("Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years") and since the claimant had completed a period of five years continuous legal residence and had then been resident non-legally for less than two years prior to 30 April 2006, her right to permanent residence as per Art 16(1) as interpreted in Lassal (Case C-162/09; 7 October 2010) could not be adversely affected. To read the judgment click here.

JS v Secretary of State for Work and Pensions [2011] EWCA Civ 806 (13 July 2011)
Stanley Burnton LJ in the CA held that 'Citizens Directive' 2004/38/EC, Art 7(3) does not provide for a woman who ceases to work owing to pregnancy to retain the status of worker (or self-employed person) and rejected her submission that its provisions unfairly discriminate against women who cannot work as a result of pregnancy. To read the judgment click here.

AQ (Pakistan) v SSHD [2011] EWCA Civ 833 (20 July 2011)
The CA held (without regard to the now additional strictures imposed by 2002 Act, s 85A) that effective operation of the points based system required the points to have been accumulated as at the date of the SSHD's decision and that 2002 Act, s 120 (re additional grounds) did not permit the Tribunal to take account of points 'achieved' through the award of a degree, after the date of the SSHD's refusal decision. To read the judgment click here.

B v SSHD [2011] EWCA Civ 828 (21 July 2011)
By a majority (Laws Etherton LJ dissenting) the CA dismissed the appellant's appeal against his sentence of 4 months' imprisonment imposed by the SIAC for contempt in that he refused to give his real name or other identity details as ordered to do by SIAC. The majority rejected the appellant's submission that a period of imprisonment would exacerbate his mental ill-health and breach Arts 3 and or 8. To read the judgment click here.

AAO v ECO [2011] EWCA Civ 840 (22 July 2011)
The CA held that refusal of entry clearance to an elderly Somali lady living in Kenya in order to join her adult daughter in the UK did not show a lack of respect for her family life of sufficient gravity such as to engage Art 8(1) and that even if it did it would have been proportionate particularly in view of the appellant's inability to fulfil the requirement in immigration rules HC 395 para 317(iva) (can, and will, be maintained adequately...without recourse to public funds). To read the judgment click here.

AJ v Upper Tribunal (AIC) [2011] CSIH 49 (21 July 2011)
The Inner House of the Court of Session held that the UT judge had erred in law in her approach to the non-genuineness of a Taliban fatwa relied upon by the Pakistani asylum claimant and in her over-reliance on 2004 Act, s 8 and the appellant's failure to claim asylum in Greece en route to the UK. To read the judgment click here.


Introduction to Immigration Law

On Tuesday 6th September HJT Training offer their comprehensive four day course "Introduction to Immigration Law" for those wishing to accredit at Level 2 with the Law Society/Legal Services Commission, or Level 3 with the OISC. For further information click here.

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