Immigration Law Bulletin - Issue 259 – 24 January 2012

Tuesday 24 January 2012

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Children's Commissioner's report on the immigration process undergone by unaccompanied children arriving in Kent. Click here to read more.

Fees paid to lawyers according to the Daily Telegraph (online version) Click here to read more.


Othman (Abu Qatada) v United Kingdom (Application no 8139/09)
Although the European Court of Human Rights did accept that diplomatic assurances would protect A from torture, the Court found that the applicant's deportation to Jordan would be in violation of Article 6 of the Convention on account of the real risk at A's retrial of the admission of evidence obtained by torture of third persons. Click here to read the full judgement.

SSHD V SK (Sri Lanka) 2012 (EWCA) Civ 16
The Court of Appeal found that the Secretary of State was entitled to find that a person's active involvement and self identification as "more than an ordinary member of LTTE" and conduct in the LTTE , a proscribed terrorist organisation and association was enough to satisfy the SSHD that the appellant was not of good character. It was a subjective test and it was for the individual to satisfy the Secretary of State that he was of good character. If the Secretary of State was not satisfied that he was of good character that was sufficient for him to refuse naturalisation. The Secretary of State was entitled to take into account that he was associated and actively involved with LTTE and in events in which prisoners of war died.. Even though there was an obligation on SSHD to protect those at risk of torture there was no obligation to grant citizenship. The Court of Appeal rejected the argument that the Secretary of State was bound by the Adjudicator findings that he was not guilty of war crimes or conduct which disentitled to asylum which was inconsistent with decision to reject his good character because the test was the same . The refugee convention question of exclusion was an objective test and the test for naturalisation was a subjective one. The Secretary of State was entitled to reject good character where a person had been a member and give support to a terrorist organisation to reject good character. The Secretary of State had complied with his own instructions on naturalisation. Click here to read the full judgement.

Muse & Others v Entry clearance officer [2012] EWCA Civ 10
The Court of Appeal remitted for rehearing the case of Somali children (12,15) who were living in Ethiopia and were refused entry to live with their Aunt who had come to the UK as a spouse. The Aunt had not lived with the children for some years but had maintained contact with the children by visiting them in Ethiopia. It was accepted that whilst there was limited family life between the sponsor and the children and that refusal to grant entry clearance would interfere with family life in a significant way. The Immigration Judge considered that the entry clearance refusal in this case was not disproportionate given that the sponsor could gain entrance to Ethiopia (as she had done previously) and bearing in mind legitimate public interest concerns. The Court of Appeal considered that the question of whether it was proportionate was not a straightforward question and required careful consideration. The Court of Appeal considered that the trauma of breaking up a family and rupturing family ties may be significantly greater than the effect of not facilitating the reunion of a family whose members have become accustomed to living apart following a decision of a family member to live elsewhere. The reasoning of the Judge who found that it was proportionate for the mother to go to Ethiopia to have family life was flawed in its reasoning. The Court of Appeal indicated that whilst this appeal was not certain to succeed it ought to be remitted back for further hearing as further evidence was required. It was noted by the Court of Appeal that no objective country evidence was put before the Immigration Judge who determined the entry clearance appeal. Click here to read the full judgement.

TM, R (on the application) v SSHD EWCA Civ 9
The Court of Appeal found that SSHD was not irrational in his decision making and that the further representations in a Pakistani Ahmadi asylum seeker did not amount to a fresh asylum and/or human rights claim. Click here to read the full judgement.

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 edition)
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.Human Trafficking Handbook
Nadine Finch has contributed to the Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK. Price: £34.99. For full details, click here.


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