Immigration Law Bulletin - Issue 305 - 17 December 2012

Monday 17 December 2012

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New immigration rules were announced on 12 December and came into force the next day. The changes include amendments to clarify the absences from the UK that are allowed during the continuous residence period for settlement for Tier 1 (General), Tier 2 and pre-points based system work routes (for example work permits, self-employment and business person), and changes to the child and parent routes: those disadvantaged by these changes, which are to be effective for decisions from 13 December notwithstanding when the application was made, should receive an opportunity to make good any difference introduced by the rules. Click here for more information.

ECRE reported on concerns as to the treatment of the Roma community in Serbia. Click here for more infotmation.


AN & FA (Children), R (On the Application Of) v Secretary of State for the Home Department [2012] EWCA Civ 1636 (11 December 2012)
Black LJ for the majority in the Court of Appeal found that, given paragraph 5.3 of UK Border Agency Code of Practice for Keeping Children Safe from Harm provides that referrals to the local authority "must be made immediately by phone, followed up by fax using an officially agreed form", there was a requirement in all but exceptional cases raising acutely urgent issues relating to health or trafficking that the child be referred to social services before being screened for asylum purposes. The weight to be given to interviews without this safeguard would be diminished, and where no timely referral was made, a child would have been unlawfully detained from the end of the "booking in" process and the time of the referral to social services. Click here to read the full judgment.

WKR, Re Judicial Review [2012] ScotCS CSOH_188 (14 December 2012)
The Court of Session found that an asylum seeker wishing to demonstrate that the United Kingdom was not the country responsible for their asylum claim would have to provide "physical evidence" including "documentary evidence" of an exit from the European Union exceeding three months in length. Click here to read the full judgment.

ZS (Jamaica) & Anor v Secretary of State for the Home Department [2012] EWCA Civ 1639 (13 December 2012)
Davis LJ in the Court of Appeal noted that overstaying was a serious matter and an Immigration Judge was wrong, having found family life to be established, to have downplayed countervailing matters of this nature. Click here to read the full judgment.

AM v Secretary of State for the Home Department [2012] EWCA Civ 1634 (12 December 2012)
Elias LJ in the Court of Appeal reiterated that it is the duty of the Tribunal to have regard to public interest deportation factors notwithstanding that the Secretary of State has not done so. An OASyS assessment made by a trained probation officer was not lightly to be dismissed and any disagreement would have to be on a reasoned basis: the Tribunal was wrong to take a firm view about re-offending risks based solely upon its own assessment of the implications of the appellant's behaviour by reference to, for example, a refusal to acknowledge guilt. Click here to read the full judgment.

Sadighpour v R [2012] EWCA Crim 2669 (11 December 2012)
The Court of Appeal Criminal Division found that where there had been a failure to give appropriate legal advice regarding section 31 of the Immigration and Asylum Act 1999, where the asylum seeker had advanced factual matters capable of raising such a defence, and in the light of this could be seen to have tendered a guilty plea without having made an informed choice, it was possible that the court will be prepared to set the conviction aside on appeal - but where they had failed in their immigration appeal on refugee grounds, it was unlikely that they would be able to satisfy a court in criminal proceedings that they were entitled to the benefit of the defence such as to warrant such benevolence. Click here to read the full judgment.

El Masri v The Former Yugoslav Republic of Macedonia 39630/09 - HEJUD [2012] ECHR 2067 (13 December 2012)
The Strasbourg Court found that a failure to investigate extraordinary rendition, an "enforced disappearance" as defined in international law, left the respondent Government responsible for violating the applicant's rights under Article 5 of the Convention during the entire period of his captivity. Click here to read the full judgment.


HJT Training
Tuesday 8 January 2013
HJT present their comprehensive 2 and 4 day courses to provide the interested participant with the knowledge and skills foundation to achieve accreditation at OISC level 2 and 3, or LSC level 1 and 2. Click here for more information.

2012: Review of the Year!
Thursday 31 January
HJT will present their review of developments in 2012 in Birmingham. Click here for more information.

Tier 1 investors and entrepreneurs
Tuesday 29 January
ILPA presents a training session on Tier 1 investors and entrepreneurs. 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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