Immigration Law Bulletin - Issue 278 - 1 June 2012

Friday 1 June 2012

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UKBA announce that students who worked as interns in the UK in summer 2011 and want to return to a graduate job with the same company are now temporarily exempt from 'cooling off rules' as introduced to Tier 2 (General) in February 2012. To read further and for exemption criteria click here.

The argument continues over current immigration policies in relation to students. To read from a recent Guardian article click here.


Aurelio de Brito & Another v Secretary of State for the Home Department [2012] EWCA Civ 709 (30 May 2012)
The principal claimant (B) was a Portuguese national who had entered the UK in January 2004 and commenced employment here in March 2004. He ceased working in February 2005 owing to illness and received statutory sick pay until July 2005 when his employment was terminated on ill-health grounds. The issue was whether he had ceased working owing to permanent or temporary incapacity because the SSHD had refused him and his family permanent residence cards under EEA Regs 2006, reg 18 on the basis that she was not satisfied that B had resided continuously in the UK for more than two years before becoming permanently (rather than merely temporarily) incapacitated in July 2005 (EEA Regs 2006, regs 5(3), 6(1)(b)&(2)(a), 15(1)(c)). Pitchford LJ whilst being prepared to accept that the two year period should start from date of entry in January 2004, rather than commencement of employment in March 2004 (see para [29]), held that the question of permanent incapacity was ultimately an objective one (rather than subjective as based on the worker's understanding of his or her position and his or her intentions at the time) and that B had failed to prove that from July 2005 his incapacity was only temporary. Appeal dismissed. To read the full judgment click here.

AL (Albania) v Secretary of State for the Home Department [2012] EWCA Civ 710 (30 May 2012)
The CA gave guidance in relation to costs in settled statutory appeals to the CA from the UTIAC. Maurice Kay LJ made the useful observation at [11]: 'It sometimes happens that in the Statement of Reasons which accompanies the joint application for the appeal to be allowed by consent, the Secretary of State indicates that the error of law is merely "arguable" and that she is consenting to the order for "purely pragmatic reasons". Whatever the Secretary of State may say, the making of the consent order by this Court assumes an error of law, without which there would be no jurisdiction for this Court to remit or for the UT to revisit the case.' And at [14] he acknowledged the importance of costs awards to legal aid solicitors. In general, an appellant who succeeds on a consent order, whether with the appeal allowed outright or remitted to the UTIAC, should be awarded costs.
To read the full judgment click here.

Thirukkumaran Shanmuganathan, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1293 (Admin) (18 May 2012)
Philip Mott QC, sitting as a Deputy High Court Judge, held: (1) that the SSHD's inadvertent breach of Immigration and Asylum Act 1999 s. 13(3), by disclosing a document to the Sri Lankan authorities which revealed that the Sri Lankan claimant was a failed asylum seeker, did not automatically invalidate the subsequent removal directions (albeit that there was a discretionary power to strike down removal directions issued in reliance on an emergency travel document obtained by deliberate and cynical disclosure in breach of 1999 Act, s 13); and (2) that the SSHD had not erred in rejecting the purported fresh asylum claim as per HC 395, para 353. To read the full judgment click here.

Patel & Others, R (on the application of) v UTIAC & Secretary of State for the Home Department [2012] EWHC 1416 (Admin) (30 May 2012)
Wyn Williams J rejected the claimants' Cart judicial review challenge to the UTIAC's refusal of permission to appeal to itself from the FTT's determination dismissing their appeal on Article 8 grounds. In so doing he did not read the judgment in JD (Congo) (see Immigration Law Bulletin issue 267) as changing, in any way, the principles formulated in Cart itself ( see Immigration Law Bulletin issue 233) and the elucidation of the "other compelling reason" test in PR (Sri Lanka) (see Immigration Law Bulletin issue 240). To read the full judgment click here.

Afzal, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1487 (Admin) (31 May 2012)
In the case of an Islamic religious teacher seeking leave to remain in the UK outside the immigration rules, Wyn Williams J accepted that 2009 Act, s 55 did require the SSHD to have regard to the need to safeguard and promote the welfare of the children taught by the claimant when making her decision about whether he should be granted leave to remain. However upon the information available to the SSHD she would have been entitled, lawfully, to conclude, and would have concluded, that a decision to refuse the claimant's application for leave to remain would not impact adversely in any way upon the welfare of the children in question such that had she properly taken account of section 55 her decision would have been identical to that which she made. Claim refused. To read the full judgment click here.

Immigration Law Training

Family Law for Immigration Practitioners
Thursday 14 June 2012

An ILPA course with Rosalind Fitzgerald and Alison Stanley will take place at 4pm in London. 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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