Immigration Law Bulletin - Issue 243 - 15 September 2011

Thursday 15 September 2011

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Cases

Khaliq (entry clearance; para 321) Pakistan [2011] UKUT 350 (IAC) (09 September 2011)
The Tribunal considered whether the phrase "application for leave" in the provisions governing cancellation of leave to enter includes leave to enter the United Kingdom at port, not simply the time the application for a visa is made. Noting that a person who arrives in the United Kingdom with entry clearance already possesses leave to enter under the provisions of the 2000 Regulations, a person arriving at a port made no application for leave to which any false representations could attach, so facts discovered during an examination at the port of entry could not of themselves justify refusal under paragraph 321A(2) unless the relevant false representations or documents had been relied on in the prior application for entry clearance. Click here to read the full judgment.

Ahmed (general grounds of refusal - material non disclosure) Pakistan [2011] UKUT 351 (IAC) (09 September 2011)
The Tribunal found that in order to have made false representations or submitted false documents so as to attract a mandatory refusal under Part 9 of the Immigration Rules, an applicant must have deliberately practised 'Deception'. Failing to disclose a material fact is also classed as 'Deception' and it follows that such failure also requires dishonesty on the part of the applicant, or by someone acting on his behalf. Click here to read the full judgment.

Guzman-Barrios (domestic violence-DLR- Article 14 ECHR) Colombia [2011] UKUT 352 (IAC) (09 September 2011)
Whilst recognising that a history of domestic violence is a relevant factor in an Article 8 appeal, there was no discrimination based on "other status" where a person who possesses only discretionary leave to remain is denied access to indefinite leave to remain. It is in the very nature of legitimate immigration control that foreign nationals who can satisfy the requirements for leave to enter or remain in the United Kingdom as laid down from time to time in the Immigration Rules are treated more favourably than those foreign nationals who cannot. Click here to read the full judgment.

Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC)
The UT ruled that it is no part of the function of a court interpreter to be drawn into a position where he or she has to give "evidence" at a hearing of anything, including the language being spoken by a witness - in the usual case an interpreter will not have the relevant expertise to identify language or dialect and most certainly cannot be assumed to have such expertise merely because he is an interpreter. Click here to read the full judgment.

Mine & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2337 (Admin) (09 September 2011)
The Administrative Court found that a person had not made an application for consideration under the DP5/96 policy (on which the transitional provisions governing its withdrawal might thus bite) before it was withdrawn where no fee accompanied the application, even where the Secretary of State had acknowledged receipt of an application outside the immigration rules. Click here to read the full judgment.

Syed, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1059 (07 September 2011)
Sir Anthony May in the Court of Appeal found that there is no need to modulate the meaning of the Immigration Rules to achieve their compliance with Article 8 ECHR because, if the applicant does not satisfy the long residence criteria but has a human rights claim not to be removed, that claim can be accommodated by other means as shown by the Home Office IDIs. The Immigration Rules are not to be construed so as to be compliant with Article 8 of the Convention. They are to be construed and applied according to their natural and ordinary meaning. In applying the policy of the rules, Article 8 may have an application. Click here to read the full judgment.

S, R (on the application of) v The Secretary of State for the Home Department [2011] EWHC 2120 (Admin)
David Elvin QC sitting as a Deputy Judge of the High Court found the detention of a person suffering serious mental illness to be unlawful. In the case of severe mental illness, there must be in place effective monitoring of the detainee and the obtaining of suitable expert advice as to how that person should be dealt with and treated, and in applying the positive duty under Article 3 ECHR it is not appropriate to "wait and see" what occurs if there are grounds for harm occurring which would pass the Article 3 threshold but to take an informed decision to prevent such harm occurring. This had not happen in the case of S. Furthermore, a deportation order is not "in force" unless it is notified and detention prior to notification would be unlawful. Click here to read the full judgment.

Yameen, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2250 (Admin)
John Howell QC sitting as a Deputy Judge of the High Court found suggested guidelines for applying the principle in HJ Iran as to the circumstances in which forced discretion would give rise to a viable asylum claim in a religious context. He found that in the relevant Country Guidance, the Tribunal did not address the question whether a material reason why some Ahmadis only propagated their beliefs in the manner they do, for example with great care and after carefully vetting those whom they may seek to persuade, was because of the risk of persecution if they did not do so, and the Secretary of State was wrong to fail to recognise representations to such effect as a fresh claim given the contentions of the Claimant in this case. Click here to read the full judgment.

Y.A. v the United Kingdom (65580/10; 12 September 2011) [2011] ECHR 1315
The Strasbourg Court communicated a case regarding the return of a failed asylum seeker to Iraq, requesting the parties to provide to comment upon the evidence regarding treatment of Christians there, and on the existence or otherwise of an internal flight alternative for the applicant in Iraq, including the Kurdish Regional Government controlled area. Click here to read the full judgment.

Immigration Law Training and Events

28 September 2011, London
HJT Training will be presenting a mini-conference in 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.

Immigration Law Books

Garden Court Chambers immigration team members are authors of numerous books which we mention from time to time.

Asylum Law and Practice
The second edition of Asylum Law and Practice by Mark Symes and Peter Jorro is published. Price: £138.00. For full details click here.

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