Immigration Law Bulletin - Issue 267 - 19 March 2012

Monday 19 March 2012

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JD (Congo) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 327 (16 March 2012)
The Court revisited the approach to the second appeals test and the circumstances in which "compelling reasons" would justify an onwards appeal to the Court of Appeal. The flexibility inherent in the statutory language, which requires the Court to decide whether a particular reason is "compelling", show that the provenance of the appeal, the consequences for the applicant for permission, and the fact that the second appeal is the first occasion that the applicant has had to correct the error, may all be relevant factors when the Court decides whether there is a compelling reason to grant permission to appeal. - Truly drastic consequences are relevant to the consideration of whether there was a "compelling reason". The extent to which it was possible to preserve the findings of fact of the FTT will be relevant in determining whether a particular application involves a true "second appeal". The UT should not routinely remit appeals to the FTT, rather than remake the decision itself, at least in any case where further factual findings were required: the fact that a more stringent test will be applied by the Court when deciding whether to grant permission for an appeal against the re-made decision is not a justification for remitting the case rather that remaking the decision. To read the full judgment click here.

MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 (13 March 2012)
The Court found that one scenario where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8 is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8, eg where the appellant had established firm family ties in this country and the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under Article 8. To read the full judgment click here.

HK (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 315 (16 March 2012)
The Court of Appeal found that it would not in all cases be appropriate to draw an adverse inference that the child would be safely received merely from the failure of the child to try to make contact with his or her family. Where the question whether family protection was available was the critical issue underlying the asylum determination, compliance with the regulation 6 obligation might cast light on that issue. There may be cases where the Secretary of State had deliberately failed to carry out the Regulation 6 duty, or cases falling short of deliberate delay where the Secretary of State is finding difficulties in obtaining information and the Tribunal feels it must in fairness to the applicant simply get on and determine the claim and fix his or her status. To read the full judgment click here.

RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 (13 March 2012)
The Court of Appeal approved the UT's reliance on Sprakab reports, which did not need to comply with the general requirements for expert evidence. However, in general any expert report should comply with the relevant Practice Direction for those produced on appeal notwithstanding that it was not originally commission for appellate proceedings. To read the full judgment click here.

Latif (s. 120 - revocation of deportation order) Pakistan [2012] UKUT 78 (IAC) (13 March 2012)
The UT found that an application for entry clearance could not succeed in the face of an extant deportation order without first making an application for said order to be revoked. To read the full judgment click here.

Abisoye (entry clearance appeal - Tier 2) Nigeria [2012] UKUT 82 (IAC) (13 March 2012)
The UT confirmed the statutory scheme for entry clearance appeals, ie a person refused entry clearance as a Tier 2 Migrant has a right of appeal limited to race discrimination and human rights grounds only. To read the full judgment click here.

Arusha and Demushi (deprivation of citizenship - delay) Albania [2012] UKUT 80 (IAC) (13 March 2012)
The UT approved the approach of the FTT which had set out that the Tribunal has a wide-ranging power to consider, by way of appeal not a review, what the decision in an appellant's case should have been, determine whether all the available relevant evidence establishes fraud and whether the other circumstances of the case point to discretionary deprival, the burden of proof lying upon the Respondent. The appellant can raise general human rights grounds but they must be framed to deal with the breach alleged to be caused by the decision to deprive the appellant of his nationality, and giving effect to that decision, and not framed to deal with the fiction that the appellant would be removed. To read the full judgment click here.

Baylan (Turkish ECAA - "identical" applications) Turkey [2012] UKUT 83 (IAC) (13 March 2012)
The UT noted that an Ankara Agreement appeal should not fail for want of an individualised business plan, it being understandable that small businessmen might use generic documents: but individual financial assessment of the viability of the enterprise was nevertheless essential in every case. To read the full judgment click here.

In Dauhoo (EEA Regulations - reg 8(2)) Mauritius [2012] UKUT 79 (IAC) (13 March 2012)
The UT noted that the scheme of the EEA Regulation regarding Extended Family Members, properly construed, showed that there were four ways in which an entitlement could be established: (a) prior dependency and present dependency; (b) prior membership of a household and present membership of a household; (c) prior dependency and present membership of a household; (d) prior membership of a household and present dependency. To read the full judgment click here.


Advanced naturalisation
Thursday 22 March 2012, 15.00, London
(4 CPD Hours)

ILPA have a course at which Adrian Berry, Garden Court Chambers and Alison Harvey, General Secretary, ILPA will ensure that, by the end of this session, practitioners will have a thorough and detailed understanding of the more difficult and complex issues that arise when making applications for the naturalisation as a British citizen. Click here for more information.

Entry Clearance
Tuesday 27 March 2012, 16:00, Liverpool Street

HJT Training have a course at their Houndsditch training venue close to Liverpool Street station telling delegates all they need to know about Entry Clearance, designed to help in making successful entry clearance applications, giving plenty of time for questions, and addressing current entry clearance procedures, using the Entry Clearance Guidance, the general grounds of refusal, evidence and tactics, appeals and reviews. Click here for more information.

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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