Immigration Law Bulletin - Issue 239 - 10 August 2011

Wednesday 10 August 2011

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XX v Secretary of State for the Home Department[2011] EWCA Civ 860
27 July 2011

Richards LJ granted permission to appeal to the Court of Appeal to consider whether evidence arising from prolonged arbitrary, unacknowledged and incommunicado detention, if obtained by the UK authorities in circumstances which suggest a breach of a peremptory norm of international law, may be inadmissible, pursuant to the court's supervisory jurisdiction to prevent the abuse of process which would be involved in the executive taking advantage of its own involvement in wrongful conduct. Additionally SIAC was arguably wrong to express the view that the UK would be in breach of article 6 only if it were to deport XX to face trial in circumstances where the evidential foundation for his prosecution and conviction was a confession procured by torture or ill-treatment of such severity as would amount to a breach of article 3 in a Convention state. To read the judgment, click here.

FB, R (On the Application Of) v Secretary of State for the Home Department [2011] EWHC 2044 (Admin)
28 July 2011

Irwin J in the Administrative Court found that the obtaining of an Emergency Travel Document to Algeria might be fraught with difficulty and delay, meaning that the case had to be handled with energy were allegations of unlawful detention to be avoided. To read the judgment, click here.

Samba Diouf (Area of Freedom, Security and Justice) [2011] EUECJ C-69/10 (28 July 2011)
The Court of Justice of the European Union found in found that the principle of effective judicial protection affords an individual a right of access to a court or tribunal but not to a number of levels of jurisdiction. A 15-day time limit for bringing a challenge to a determination did not strike the Court as insufficient in practical terms to bring an effective action and appeared reasonable and proportionate. The decisions against which an applicant for asylum must have a remedy under Article 39(1) of Directive 2005/85 are those which entail rejection of the application for asylum for substantive reasons or, as the case may be, for formal or procedural reasons which preclude any decision on the substance - but decisions that are preparatory to the decision on the substance or decisions pertaining to the organisation of the procedure are not covered by that provision. To read the judgment, click here.

Suckrajh, R (on the application of) v The Asylum & Immigration Tribunal & Anor [2011] EWCA Civ 938
29 July 2011

Thomas LJ in the Court of Appeal in found that before a person can be detained under the Fast Track procedure a detailed process should be followed and reasons recorded, acting as a safeguard to try and ensure that, as relatively junior officers are entrusted with the power to detain, there are proper grounds for detention. UNHCR's concern as to the failure properly to record reasons for the selection of Detained Fast Track cases might be well founded, depending on whether this was an isolated case or not, and this issue needed the attention of the Secretary of State and the Chief Executive of the UKBA. The motivation of protecting the public could not have justified the exercise of the power to allocate to the DFT procedure. To read the judgment, click here.

Huang, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2069 (Admin)
28 July 2011

Graham Wood J sitting as a Deputy High Court judge in found that, bearing in mind that the burden of justifying detention rests on the Defendant, and her own guidance enjoins the detaining officers to ensure that the reasons for detaining are "always justified", detention became unlawful where a reasonable assessment of the grounds for judicial review showed that the Claimant had a good prospect of securing permission, thus significantly extending the time before any removal could be effected validly. The lack of satisfactory evidence of entitlement to stay in the United Kingdom did not bear heavily in favour of detention. To read the judgment, click here.

BB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWCA Civ 2129
2 August 2011

Sir Anthony May in the Divisional Court considered whether bail proceedings in SIAC might bring Article 6 of the ECHR into play. He found that SIAC bail proceedings only take place in the direct context of deportation proceedings (or immigration measures). They are an alternative to or relaxation of immigration detention and are directly in aid of contemplated deportation, conditioned on the person's future attendance before an immigration officer. SIAC bail proceedings may affect a person's civil and human rights, but they do not determine them, in the sense that the relevant issue at stake is the question of deportation. To read the judgment, click here.

M. And Others V. Bulgaria - 41416/08 [2011] ECHR 1195
The European Court of Human Rights found that a decision that interfered with the applicants' family life would be not "in accordance with the law" where there was no examination of whether the executive was able to demonstrate the existence of specific facts justifying expulsion on national security grounds beyond uncorroborated statements by the Ministry of the Interior. The rule of law in a democratic society required that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural adjustments related to the use of classified information. As found in CG and Others, the limits of "national security" may not be stretched beyond its natural meaning. To read the judgment, click here.


HJT Training will be presenting a mini-conference in London on 28 September 2011 on the transfer of judicial review functions from the Administrative Court to the Upper Tribunal (Immigration and Asylum Chamber): speakers will include Mr Ockelton, the Chamber's Deputy President. For more details, click here.

On Tuesday 6th September in London (and a week later in Manchester) HJT begins its full four day comprehensive introduction to immigration law, essential for the accreditation exams for publicly funded and OISC work, and for practitioners wishing to master key concepts before representing private clients. For more details, click here.

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