Immigration Law Bulletin - Issue 300 - 12 November 2012

Monday 12 November 2012

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News

House of Commons home affairs select committee report is critical of UKBA backlog, finding that the number of outstanding asylum and immigration cases rose by 25,000 last month. To read further, click here.

Cases

Nirula, R (on the application of) v First-tier Tribunal and Secretary of State for the Home Department [2012] EWCA Civ 1436 (8 November 2012)
The CA held that in order to have an in-country right of appeal, against an immigration decision to remove an illegal entrant, by reliance on 2002 Act, s 92(4)(a), it was insufficient, because in effect too late, to raise a human rights claim (or an asylum claim) for the first time in a notice of appeal. The FTT had been entitled to refuse jurisdiction on its own motion - and in so deciding the court considered the CA judgment in Anwar (see Immigration Legal Bulletin issue 206).
To read the full judgment click here.

Kadri, R (on the application of) v Birmingham City Council and Secretary of State for the Home Department (and linked cases) [2012] EWCA Civ 1432 (7 November 2012)
The CA considered the correct approach to contradictory age assessments carried out (i) by local authorities for the purposes of the Children Act 1989 and (ii) by the SSHD in discharging her immigration functions. Although it was desirable for local authorities and the SSHD to attempt to agree age assessments, local authorities are not bound by a 2005 joint working protocol; and under EU law - relating to the CEAS Directives on 'Reception', 'Qualification' and 'Procedures' - local authorities are not bound by age assessments undertaken by the SSHD nor by those made by the FTT (IAC) on appeal.
To read the full judgment click here.

KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1420 (6 November 2012)
Another age dispute case in which on appeal to the UT the judge had rejected as flawed both the local authority age assessment relied upon by the SSHD and the appellant's own age assessment and had instead found against the appellant's claim to be under 18, at relevant times, on adverse credibility grounds. The CA rejected the appellant's submission that in light of the UT's finding of flaws in the local authority's assessment, he was entitled to be given the benefit of the doubt under the SSHD's age assessment policy and that the UT's decision was not therefore in accordance with law. Rather the determination of a person's age was a pure question of fact which raised no point of law and the UT's factual finding was upheld.
To read the full judgment click here.

Kalidas (agreed facts - best practice) [2012] UKUT 00327(IAC) (2 November 2012)
Guidance from the UT regarding best practice in respect to parties before the FTT agreeing facts and as to the consequences of facts being agreed. In particular judges should look behind factual concessions only in exceptional circumstances and if the scope of a concession is unclear, or if evidence develops in such a way that its extent and correctness need to be revisited, the judge must draw that to attention of representatives; an adjournment may become necessary.
To read the full determination click here.

Mubu and others (immigration appeals - res judicata) [2012] UKUT 00398(IAC) (24 October 2012)
UT held that the principle of res judicata does not operate in immigration appeals. Rather the guidelines set out in Devaseelan are always to be applied to the determination of a factual issue, the dispute as to which has already been the subject of judicial determination in an appeal against an earlier immigration decision involving the same parties. This is so whether the finding in the earlier determination was in favour, or against, the SSHD.
To read the full determination click here.

GS and EO (Article 3 - health cases) India [2012] UKUT 00397(IAC) (24 October 2012)
Reviewing the law on Art 3 health cases the UT held that: (i) the fact that life expectancy is dramatically shortened by withdrawal of medical treatment in the host state is in itself incapable of amounting to the highly exceptional case that engages the Art 3 duty; (ii) there are recognised departures from the high threshold approach in cases concerning children, discriminatory denial of treatment, absence of resources through civil war or similar human agency; (iii) Art 8 cases may also require a different approach and will do so where health questions arise in the context of obstacles to relocation; (iv) any extension of the principles set out in N v SSHD [2005] UKHL 31 and N v UK (2008) 47 EHRR 39 will be for the higher courts.
To read the full determination click here.

Courses and Training

HJT training - Understanding Legal Aid
Wednesday 14 November 2012
A practical course with tips on Maximising Profitability. Click here for more information.

ILPA training - The implications of Alvi and Munir
Monday 26 November 2012
Trainers including Ronan Toal will be presenting a session for ILPA on the ongoing implications for constitutional law and the doctrine of retrospectivity of Alvi and Munir. 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, 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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