Immigration Law Bulletin - Issue 266 - 12 March 2012

Monday 12 March 2012

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News

The UK government has signed an agreement (not yet in force) with the government of the Republic of Korea concerning the readmission of persons - including persons who have lost the nationality of the requested party (of potential relevance to the possible 'return' of North Koreans to South Korea - see SSHD v SP (North Korea) & Ors [2012] EWCA Civ 114 in LB # 263). To read further click here.

Cases

W (Algeria) & Ors v Secretary of State for the Home Department [2012] UKSC 8 (7 March 2012)
The SC, reversing the CA, ruled that it was open, under strict conditions, for the SIAC to make an absolute and irreversible ex parte order in favour of an appellant before it prohibiting the SSHD from ever disclosing to any third party (especially the authorities of a foreign state) the identity and evidence of a witness from whom the appellant proposed to adduce evidence in circumstances where that witness would not give evidence unless absolutely sure that his or her identity and evidence would under no circumstances be passed on to anyone other than the SSHD and the SIAC itself. To read the full judgment click here.

Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260 (7 March 2012)
The CA held (contrary to the proposition put forward in Macdonald's (8th edn) at para 19.22) that in the absence of a section 120 notice (2002 Act, s 120) having been served by the SSHD it was not open to an appellant to raise any new immigration rules based grounds for being allowed to remain in the UK on an appeal to the FTT because the FTT has no jurisdiction to consider such new grounds. The SSHD has a discretionary power, but not a duty (contrary to obiter comments in Mirza and Sapkota), to serve a section 120 notice; but the SSHD's failure to do so will impact on her ability to certify a future appeal, based on the new ground, under 2002 Act, s 96. To read the full judgment click here.

Miah & Ors v Secretary of State for the Home Department [2012] EWCA Civ 261 (7 March 2012)
The CA firmly rejected the submission that there is any 'near miss' principle applicable to the Immigration Rules, to the effect that where an applicant / appellant fails to meet all of the requirements of an immigration rule by a narrow margin this thereby reduces the weight to be given to the public interest side of the proportionality balance for Article 8 purposes. Suggestions to the contrary in Pankina and MB (Article 8 - near miss) Pakistan were obiter and contrary to the earlier decisions in Mongoto and Rudi. To read the full judgment click here

Kapoor & Ors v R [2012] EWCA Crim 435 (9 March 2012)
In a case of conspiracy to commit offences under 1971 Act, s 25(1) (knowingly etc doing an act which facilitates the commission of a breach of immigration law by a non-EU citizen) the CA Criminal Division that for the purposes of s 25(2) an 'immigration law' is a law which determines whether a person is lawfully or unlawfully entering, transiting or 'being in' the UK and thus does not 'cover' an asylum seeker who presents himself to an immigration officer on arrival at the airport - see 1971 Act, s 11 - and does not cover a crime committed by said asylum seeker under 2004 Act, s 2 (failure to produce a passport etc). Judgment not yet available on BAILII.

Events

Practical tips on Maximising Profitability (Thursday 15 March 2012)
Well known immigration solicitor and billing expert Jawaid Luqmani is presenting the course 'Practical tips on Maximising Profitability' for HJT Training in central London which will be very useful for the understanding of billing rates, opportunities and threats to public funding, now and in the future, addressing the new costs regime from October 2011, the scope for increasing uplift on controlled work, common costs compliance issues, and maximising costs on an inter partes basis.
For more information, click here.

 

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