Immigration Law Bulletin - Issue 284 – 23 July 2012

Monday 23 July 2012

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For the government's response to the Supreme Court judgments in Munir and Alvi (as to which see below) click here.

Statement of changes in Immigration Rules
Government laid a statement of changes in immigration rules on 19 July coming into force on 20 July, in order to safeguard their lawful operation in light of the Alvi SC judgment (see below). For the statement of changes (all 296 pages), Cm 8423, click here.

Cases

Munir & Another, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 32 (18 July 2012)
The SC dismissed the appeals against the CA's judgment in Rahman & Ors (see Immigration Law Bulletin Issue 236) whilst rejecting the SSHD's contention that the issuing of a concessionary policy (here DP5/96) (or indeed the waiving of a requirement in the rules in an individual case) is an exercise of prerogative power which for that reason does not come within the scope of 1971 Act, s 3(2). Rather per Lord Dyson (with whom all the other SCJs agreed) the SSHD is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the UK. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement "as to the practice to be followed" within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament.
To read the full judgment click here.

Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33 (18 July 2012)
In dismissing the SSHD's appeal from the CA's judgment (see Immigration Law Bulletin Issue 231) the SC held that any requirement which, if not satisfied, would lead to an application for leave to enter or remain being refused was a 'rule' within the meaning of 1971 Act, s. 3(2), and a fair reading of s. 3(2) required that it be laid before Parliament. This test should be applied in preference to the tests described in Pankina and the subsequent cases. Obiter and by 3-2 majority: the information contained in the Occupation Codes of Practice and other guidance as to where a sponsor should look to assess the state of the resident labour market was a 'rule' within s. 3(2) such that any changes in the requirements as to the newspapers, journals and websites in which a post must be advertised, constituted a change in the rules.
To read the full judgment click here.

BA & Ors v Secretary of State for the Home Department [2012] EWCA Civ 944 (11 July 2012)
In dismissing the SSHD's appeals from HHJ Thornton's judgment in the QBD, the CA held that it was not an abuse of process for the claimant failed asylum seekers to bring a private law claim for damages for unlawful detention after they had been refused permission to bring proceedings for judicial review of removal directions in circumstances where it had not been possible for them to instruct a single firm of solicitors to bring both claims because of the arrangements for the franchising of legal aid. However the President of the QBD warned that assuming that the position on legal assistance does not remain as it is, for the future a claimant in detention who challenges the legality of removal directions will be well advised to raise in the judicial review proceedings any claim in relation to the legality of the detention or run the real risk that, where there is no change of circumstances, a subsequent claim for damages for detention will fail as an abuse of process.
To read the full judgment click here.

Adedoyin v Secretary of State for the Home Department [2012] EWCA Civ 939 (13 July 2012)
In dismissing the applicant's appeal from the determination of the UTIAC which in turn had allowed the SSHD's appeal from that of the FTT(IAC) - and in holding that the FTT's decision, that the applicant should be granted leave to remain on the basis of the care she provided to her brother, was unsustainable on Art 8 proportionality grounds - the Court gave, rather minimal, general guidance as to how the CA should consider a determination of the UT allowing an appeal against the determination of the FTT.
To read the full judgment click here.

Hussain, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin)(13 July 2012)
The Deputy High Court Judge quashed, and remitted for reconsideration, the SSHD's October 2011 decision to refuse the Iraqi claimant ILR and to instead grant him 3 years DL. The claimant had been part of a group of Iraqis who had hijacked a Sudanese aircraft and brought it to the UK back in 1996. The decision made by the SSHD was flawed by reason of (1) the failure to consider the cases of the other persons involved with the hijacking who had been granted ILR, thereby not treating like cases alike; and (2) the failure to consider the claimant's claimed defence of duress after wrongly finding that there was no evidence of risk to the claimant in Sudan, thereby ignoring relevant matters.
To read the full judgment click here.

E, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1927 (Admin) (17 July 2012)
The Deputy High Court Judge quashed, and remitted for reconsideration, the SSHD's 'conclusive decision' that the claimant was not a victim of trafficking. The judge concluded that that the question to be answered in the 'conclusive decision' is the same as in the 'reasonable grounds decision', namely whether the person has been a victim of trafficking (and thus is the victim of a trafficking offence). The SSHD had not asked herself the right question in finding that the claimant was not a victim of trafficking because she had not been trafficked into the UK (the case was that she had been trafficked from Eritrea to Sweden, had escaped to Norway and then after being refused asylum there came of her own volition to re-claim asylum in the UK).
The Deputy Judge rejected the claimant's assertion that the six month transfer (to Norway) time limit in the Dublin II Regulation had expired because the 'suspension of time' was purely on the defendant's initiative and not as a result of a court injunction - the SSHD is herself a 'competent body' to suspend time.
Obiter - the Deputy Judge considered it unlikely that Dublin II could relieve the SSHD of the self-imposed obligations arising from her policy of implementing the Trafficking Convention.
To read the full judgment click here.

Hakemi & Others, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1967 (Admin) (19 July 2012)
Burton J rejected the claims of four failed asylum seekers in what has become known as the "Legacy cases" (their initial asylum applications having been refused and appeal rights exhausted prior to 5 March 2007). The claimants did not pursue their claims that the 'Legacy' amounted in effect to an amnesty and that they were the victims of inconsistent treatment vis-à-vis others granted leave in 'legacy cases'. Burton J rejected their remaining grounds relating inter alia to Pankina failure to incorporate asserted changes of practice as per the Legacy in immigration rules, failure by SSHD to publicise aspects of her practice and policy, failure to invite further representations from the claimants, and culpable delay by SSHD in enforcing removal.
To read the full judgment click here.

Immigration Law Training

Challenging immigration decisions, appeal rights and other remedies
ILPA, 24 July 2012, London

Peter Jorro and Steve Symonds run their course on challenging immigration decisions, appeal rights and other remedies in London at 4pm. For details, click here.

Mastering Procedures in Judicial Review
HJT Training, 18 September 2012, London

HJT Training offers their new course, which will cover all aspects of judicial review claims and procedure, as revision for the experienced, and as a detailed introduction for those wishing to embark on more High Court work. For details 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, and has been described as "pre-eminent" by Lord Brown. 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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