Immigration Law Bulletin - Issue 246 - 3 October 2011

Monday 3 October 2011

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Bah v United Kingdom 56328/07 [2011] ECHR 1448
(27 September 2011)
The European Court of Human Rights found that immigration status can amount to a ground of distinction for the purposes of Article 14, since it is legal rather than personal. Given the element of choice involved in immigration status, absent inability to return abroad, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality. It was justifiable to differentiate between those who rely for priority need status on a person who is in the United Kingdom unlawfully or on the condition that they have no recourse to public funds, and those who do not, and finds that the legislation in issue in this case pursued a legitimate aim, namely allocating a scarce resource fairly between different categories of claimants. For the full judgement click here.

Alim v Russia 39417/07 [2011] ECHR 1453

(27 September 2011)
The Strasbourg Court found that non-observance of the "registration" procedure for foreigners could be classified as a minor administrative offence in the assessment of proportionality. Whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has remained within its margin of appreciation. For the full judgement click here.

Ara (successful appeal - no entry clearance) Bangladesh
[2011] UKUT 376 (IAC)
(27 September 2011)
The UT noted that whilst an ECO will not be permitted to deliberately attempt to circumvent an appeal decision adverse to the ECO, by simply carrying out further investigations with a view to coming up with a new basis for refusing entry clearance, the ECO may nevertheless take account of considerations not raised in an earlier refusal in which case the Tribunal will on any subsequent appeal consider the earlier decision with reference to the principles in Devaseelan. For the full judgement click here.

Pun and others (Gurkhas - policy - article 8) Nepal [2011] UKUT 00377 (IAC)
(8 September 2011)

The discretion found within the Home Office policies on Gurkhas at para 29.14 or SET 12 sets out a true discretion to be exercised outside the Rules by the respondent and cannot reasonably be interpreted as setting out a number of different requirements where the fulfilment of one or more leads to an entitlement to a grant of entry clearance. Whilst contrived dependency would not carry any weight in an Article 8 assessment, dependency did not necessarily have to be of necessity rather than choice: Pun and others (Gurkhas - policy- article 8) Nepal [2011] UKUT 377 (IAC) (27 September 2011). Click here to read the full judgement.

Mohamoud (Paras 352D and 309A - de facto adoption) Ethiopia [2011] UKUT 378 (IAC)
(27 September 2011)

The UT found that (a) to (e) of the definition of "parent" in immigration rule 6 represents an exhaustive list of the ways in which an individual can be regarded as a parent under the Immigration Rules and that the meaning of "de facto adoption" set out at paragraph 309A applies to refugee child cases under paragraph 352D, as well as paragraphs 310-316C of the immigration rules. Click here to read the full judgement.

EA (Sunni/Shi'a mixed marriages) Iraq CG [2011] UKUT 342 (IAC)
(27 September 2011)

The UT found that in general there is not a real risk of persecution or other significant harm to parties to a Sunni/Shi'a marriage in Iraq. Click here to read the full judgement.

Ajakaiye (visitor appeals - right of appeal) Nigeria [2011] UKUT 375 (IAC)

(27 September 2011)
the UT found that if the notice of appeal has been accepted and no objection is taken by the respondent, there is no need for the Immigration Judge to embark on an inquiry into his or her own jurisdiction. Click here to read the full judgement.

Immigration Law Training and Events

European Union law update
(6 October 2011)

HJT Training runs a European Union law update covering all aspects of free movement law, including important recent decisions on extended family members, residence cards and rights of appeal. For more information click here.

Naturalisation and Registration as a British citizen
(4 October 2011)

ILPA run a course on Naturalisation and Registration as a British citizen, aimed at experienced lawyers.

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 (2nd edition)
The second edition of Asylum Law and Practice by Mark Symes and Peter Jorro is published. Price: £138.00. For full details click here.

Fransman's British Nationality Law (3rd edition)
The third edition of Fransman's British Nationality Law, written by Laurie Fransman QC and with contributions from Adrian Berry and Alison Harvey, was published in spring 2011. Price: £295.00. For full details click here.

Macdonald's Immigration Law & Practice (8th edtion)
The eighth edition of Macdonald's Immigration Law & Practice was written by Ian Macdonald QC with contributions from many members of the Garden Court Immigration Team. Price: £230.00. For full details click here.


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