Immigration Law Bulletin - Issue 262 - 13 February 2012

Monday 13 February 2012

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Immigration minister Damian Green has issued a written ministerial statement proposing an increase in visa fees. To read further, click here.

Statement of Changes in Immigration Rules
HC 1733 comes into effect on 13 February 2012 inter alia deleting paras 395A-F of the Immigration Rules. Most significant is the deletion of para 395C. However a new para 353B is inserted providing for 'exceptional circumstances' to be considered when deciding whether to enforce removals in stipulated circumstances. To read further click here.


Meaza Asefa (R on the application of) v Secretary of State for the Home Department [2012] EWHC 56 (Admin) (31 January 2012)
Langstaff J rejected the Eritrean claimant's challenges to removal to Italy (where she had been granted asylum) under Dublin II and to the SSHD's certification of her Art 8 claim as clearly unfounded. The best interests of her two teenage children who had been with her in the UK for 3 years could not be sufficiently adversely affected by removal to Italy such as to outweigh the public interest in maintaining the integrity and practical utility of the common European asylum system of which Dublin II formed part.
To read the full judgment click here.

Othman v Secretary of State for the Home Department [2012] UKSIAC B1 (6 February 2012)
Mitting J in the SIAC held that, although applying Hardial Singh principles, all four of the propositions required to be established to justify continued detention exist (and thus that under ECHR Art 5(1)(f) continued deprivation of liberty remains lawful), the applicant - in respect to whom a chamber of the ECtHR has recently ruled that his removal to Jordan under a Memorandum of Understanding would result in a flagrant violation of his Art 6 fair trial rights - should be admitted to bail under highly restrictive terms.
To read the full judgment click here.

MT (Article 1F (a) - aiding and abetting) Zimbabwe [2012] UKUT 00015(IAC) (2 February 2012)
The UTIAC considered the ambit of exclusion under Art 1F(a) of the Refugee Convention (and Art 12(2)(a) of the Qualification Directive) in a case of a Zimbabwean police officer who claimed that she had been pressurised by her superiors to participate in various acts against political opponents of ZANU PF. Held inter alia: the requirement set out at Art 7(1) of the ICC Statute that acts be "...committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack" (the "chapeau requirement") is an essential element in the definition of a crime against humanity. Whether acts are '...committed as part of a widespread or systematic attacks directed against any civilian population' must be decided on a case-by-case basis. Commission of a crime against humanity or other excludable act can take the form of commission as an aider and abettor, as a subsidiary (or non-principal) form of participation. Aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, i.e. the contribution should facilitate the commission of a crime in some significant way. Duress is a defence to international criminal responsibility (Art 31(1)(d) ICC Statute) but such a defence is confined to situations where the defendant's freedom of will and decision is so severely limited that there is eventually no moral choice of counter activity available. It has four components: the threat must be of imminent death or continuing or imminent serious bodily harm; the threat must result in duress causing the crime; a threat results in duress only if it is otherwise avoidable (i.e. if a reasonable person in comparable circumstances would have submitted and would have been driven to the relevant criminal conduct); and the act directed at avoiding the threat must be necessary in terms of no other means being available and reasonable for reaching the desired effect.
To read the full determination click here.

Masih (deportation - public interest - basic principles) Pakistan [2012] UKUT 00046(IAC) (7 February 2012)
The UTIAC chaired by the President summarised the basic principles, as derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals.
To read the full determination click here.

Sanade and others (British children - Zambrano - Dereci) [2012] UKUT 00048 (IAC) (7 February 2012)
Further guidance from the UTIAC on deportation of 'foreign criminals'. Art 8 provides one exception from automatic deportation but there is no justification for saying that it will only be in exceptional circumstances that removal will violate the family's protected Art 8 rights or that the claim itself must be exceptional: the issue is whether the State can justify the interference as necessary, that is say a proportionate and fair balance in pursuit of a legitimate aim. The more serious the offending, the stronger is the case for deportation, but Parliament has not stated that every offence serious enough to merit a penalty of twelve months or more imprisonment makes interference with human rights proportionate. ZH (Tanzania) considered in what circumstances it was permissible to remove or deport a non-citizen parent where the effect would be that a child who is a citizen of the UK would also have to leave. The fact the children are British was a strong pointer to the fact that their future lies in the UK. Ruiz Zambrano makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the EU, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the EU or for the SSHD to submit that it would be reasonable for them to do so. However, where in the context of Art 8 one parent ("the remaining parent") of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see Dereci. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the UK or elsewhere in the Union. Where the claimant's conduct is persistent and/or serious the interference with family life may be justified even it involves the separation of the claimant from his family who reasonably wish to continue living in the UK, Lee v SSHD [2011] EWCA Civ 348. The principles for evaluating Art 8 claims in criminal deportation cases are to be found in the Strasbourg jurisprudence of Boultif v Switzerland; Uner v Netherlands and Maslov v Austria. In cases of the importation and supply of significant quantities of Class A drugs, Strasbourg has recognised why states show great severity to such foreign offenders but there is no special principle in cases of importation or supply of drugs. Deportation must always be proportionate.
To read the full determination click here.

Immigration Law Training

Update on asylum law (20 February 2012 at 4pm)
Mark Symes will be presenting an update on all relevant issues involving asylum law, both in terms of refugee and Humanitarian Protection cases, and also human rights arguments relevant to protection: the latest arguments on Afghanistan, Somalia and Iraq, on persecution due to gender and gender preference, third country cases and trafficking. For more information, 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 (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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