Immigration Law Bulletin - Issue 244 - 20 September 2011

Tuesday 20 September 2011

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News

For the Immigration Minister's latest proposals for reforming family based migration into the UK, click here.

Cases

R (on the application of Mrs BN) v Secretary of State for the Home Department [2011] EWHC 2367 (Admin) (16 September 2011)
In a lengthy judgment Stadlen J considered whether a fresh Article 8 human rights claim had been made based on asserted previous failure to properly consider the claimant's and her children's circumstances and to give regard to the duty imposed under 2009 Act, s 55 with respect to promoting the children's welfare. With particular reference to a detailed report by a social worker the judge concluded that it had been Wednesbury unreasonable of the SSHD to have not accepted that a fresh human rights claim, with a realistic prospect of success on an appeal to the Tribunal, especially in light of the SC judgment in ZH (Tanzania), had been made. Stadlen J also criticised the UKBA for failing to pass the social worker's report to the Office of the Children's Champion and held that the decision not to defer actual removal of the claimant so as to give the OCC proper opportunity to give informed advice in light of the new material, was also Wednesbury unreasonable. Of general interest Stadlen J at para [86] noted with approval counsel for the SSHD's concession that under immigration rule 353 the fact, if it be established, that any new material relied on was available or could reasonably have been available at the time of the first decision, would be just a factor to take into account in considering whether, taken together with the previously considered material, the new material created a realistic prospect of success, rather than being an absolute bar. To read the full judgment click here.


VH (AP) v Secretary of State for the Home Department [2011] CSOH 152 (15 September 2011)

The temporary judge of the Outer House of the Court of Session also quashed a decision by the SSHD refusing to accept the representations of a Zimbabwean asylum claimant, as based on her sur place political activities, as constituting a fresh claim. The judge was particularly critical of an assertion by the decision-maker to the effect that the claimant had produced 'no evidence' to substantiate her claim when in fact she had produced such evidence in her own witness statement and 'corroboration was not required as a matter of law...' To read the full judgment, click here.

AMC (AP) v Secretary of State for the Home Department [2011] CSOH 155 (16 September 2011)
Lord Bannatyne in the Outer House of the Court of Session quashed the SSHD's certification under 2002 Act s 94(2) of the Colombian claimant's Article 8 human rights claim as based on her private life rights. She had been sentenced to 20 month's imprisonment for a drugs offence. Of particular note, Lord Bannatyne considered that it was at least arguable that the Strasbourg judgment in Khan v UK (Appl. No. 47486/06; 12 January 2010) evidences a slight softening of the line taken to that point by the courts in cases involving drugs and where family life was of no decisive weight (see paragraph 47 of Khan) and therefore it is a matter to which the Secretary of State ought to have turned her mind and given consideration. Interestingly the judge held that the Wednesbury review approach should apply to challenges to s 94 certificates in Scotland (see for England and Wales, MN (Tanzania)), To read the full judgment, click here.

Butt (para 245AA(b) - "specified documents" - judicial verification) Pakistan [2011] UKUT 00353 (IAC) (9 September 2011)
Immigration rules, para 245AA(b) does not require the Tribunal to adjourn a hearing in order for the SSHD to carry out verification checks on what are claimed to be "specified documents", when those documents are produced at the hearing or are served so soon before the hearing as to provide no pre-hearing opportunity for the SSHD to take the reasonable steps to verify those documents contemplated by that paragraph. Rather it is for the Tribunal itself to assess the evidence for itself in the usual way. Click here to read the full judgment.

Immigration Law Training and Events

Transfer of judicial review functions HJT Training
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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