The UKBA has issued new policy guidance following the judgment of the Supreme Court in the case of Quila and Bibi v SSHD  UKSC 45 (see LB # 48). The guidance primarily affects applicants whose applications for entry clearance or leave as a fiancé(e), proposed civil partner, spouse, civil partner, unmarried partner or same-sex partner were refused under paras 277, 289AA, or 295AA of the Immigration Rules solely because they or their sponsor were aged between 18 and 20 and whose application was refused on that basis between 27 November 2008 and October 2011. New Immigration Rules to lower the permissible age back to 18 will come into effect on 28 November 2011. For more details, click here.
SH (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1284
8 November 2011
The CA held that it had been unfair and unlawful for an IJ to have refused an adjournment in a 'fast-track' case in order for the appellant to obtain expert evidence as to his age (he claimed to be a minor, some 4 or 5 years younger than assessed to be by the SSHD). Furthermore the SIJ in the UT on appeal had seriously erred in law by: (1) holding that the IJ's refusal to adjourn had not been irrational or perverse: rather the test and sole test was whether it was unfair to have refused to adjourn. And (2) by determining that even if the IJ had received the appellant's expert report as to his age 'it is reasonably likely' that he would have reached the same decision. The correct test was whether it would have been pointless to have adjourned because the result would have inevitably been the same. (Though in the event the CA dismissed the appeal holding that this was one of those rare cases where the unlawful errors of procedure made no difference whatever because, in effect, the appellants' claim as to his age was absurd). For the full judgment, click here.
Ahmed, R (on the application of) v Secretary of State for the Home Department  EWHC 2855 (Admin)
2 November 2011
Singh J held with reference to Pankina and subsequent authorities that there is a distinction between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility. Whereas the former can only be changed by amending the immigration rules, the latter need not be and can properly be the subject of policy guidance. On the facts, the claimant's claim - that that the SSHD had acted unlawfully in rejecting his application for LTR on the basis of his failure to provide a CAS in virtual form when at the relevant time there was no requirement in the immigration rules for a CAS to be in virtual form, the requirement being set out only in policy guidance - failed. For the full judgment, click here.
Oppong (visitor - length of stay) Ghana  UKUT 00431 (IAC)
11 November 2011
The UT held that although an application for a visit visa which, if granted, could result in permission to spend more than 6 of 12 months in the UK is likely to be scrutinised rigorously, it is wrong to refuse someone entry clearance as a general visitor just because they have spent more than six of the last twelve months in the UK. In certain circumstances a person can utilise para 41 of the Immigration Rules (general visitor) in order to visit the UK to provide temporary care for a person present here. For the full judgment, click here.
Moneke (EEA - OFMs - assessment of evidence) Nigeria  UKUT 00430 (IAC)
11 November 2011
The UT exhorted IJs determining appeals regarding OFM (other family member) applications made in country, to scrutinise with some care the supporting evidence, in order to satisfy themselves that the burden of proof demonstrating eligibility has been discharged. For the full judgment, click here.
Immigration Law Books
Garden Court Chambers immigration team members are authors of numerous books which we mention from time to time.