Immigration Law Bulletin - Issue 310 - 4 February 2013

Monday 4 February 2013

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News

A new study by the European Network for Technical Co-operation on the Application of the Dublin II Regulation found vast divergences in the way EU Member States apply the instrument with some failing to have adequate regard to the humanitarian clause or the provisions maintaining family membership. Meanwhile the UN Working Group on Arbitrary Detention visited Greece and found that the long-term detention of asylum seekers without effective judicial review amounted to arbitrary detention. Click here for more information.

Cases

CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) (31 January 2013)
The Tribunal found that there is no general duty of disclosure on the Secretary of State in asylum appeals generally or Country Guidance cases in particular. A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. The CG previously articulated with respect to Zimbabwe in EM was re-articulated with the italicised proviso added: whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a "loyalty test"), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF. Click here to read the full judgment.

Dang (Refugee - query revocation - Article 3) [2013] UKUT 43 (IAC)
The Tribunal considered the revocation of refugee status in the context of serious criminal offending. They found that the provisions of the Refugee Convention in such cases, which were that a person remains a refugee but is removable, are apparently inconsistent with those of Article 14(4) of the Qualification Directive and para 339A(x) of the Immigration Rules which provide for revocation of his status. However as European refugee status was different to Convention refugee status there was no legal difficulty here. As opined by UNHCR, the Secretary of State acted unlawfully in revoking Convention, as opposed to European, refugee status in cases of criminality. The power to revoke or refuse to renew an individual's grant of asylum is not available if an asylum application was made before 21 October 2004; it is only available if an asylum application was made on or after 21 October 2004 and at least one of the provisions in sub-paragraphs (i) to (vi) apply of para 339A. Additionally, they found that the fact that an individual is a refugee or has been recognised as a refugee in the past does not mean that there is any legal or evidential presumption that removal to his or her country will be in breach of Article 3. Click here to read the full judgment.

Izuazu (Article 8 - new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013)
The UTIAC found, endorsing MF, that in cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles. Click here to read the full judgment.

Khatel and others (s85A; effect of continuing application) Nepal [2013] UKUT 44 (IAC) (28 January 2013)
The UTIAC found that an application for further leave to remain is to be treated as a continuing application, starting with the date when it was first submitted and ending on the date when it is decided, and thus it follows that an appellant is not precluded by section 85(5) of the Nationality, Immigration and Asylum Act 2002 from relying in an appeal upon evidence that was notified to the Secretary of State before the date of her decision. Where, in an application for leave as a Post-Study Work Migrant, the obtaining of the academic award needed to gain the requisite points is notified to the Secretary of State after the date when the application was first submitted but before a decision is made on the application, the requirement of Table 10, that the qualification is obtained within 12 months of making the application, is satisfied because the application is a continuing one until a decision upon it has been made. Click here to read the full judgment.

Mirza (ACCA Fundamental level qualification - not a recognised degree) Pakistan [2013] UKUT 41 (IAC) (28 January 2013)
The UTIAC found that ACCA does not have degree awarding powers and the qualifications which it awards are not UK recognised degrees. Click here to read the full judgment.

H.I.D., v Refugee Applications Commissioner, Ireland, [2013] EUECJ C-175/11 (31 January 2013)
The Court of Justice of the European Union found that any asylum applications can be subject to prioritised or accelerated examination so long as the procedural safeguards of the Common European Asylum System are implemented. The Irish Refugee Appeals Tribunal met the criteria of establishment by law, permanence and application of rules of law. Click here to read the full judgment.

MB & Ors v Secretary of State for Home Department [2013] EWHC 123 (Admin) (01 February 2013)
Mitting J in the Administrative Court found that there was no proof of a systemic deficiency in asylum procedures in Malta nor was there evidence that failed asylum seekers would be detained on their return there. No obligations were owed regarding failed asylum seekers to permit them to revive an asylum claim and the only duty on the third country was to take them back under the Dublin II Regulation. Click here to read the full judgment.

EU (Afghanistan) & Ors v Secretary of State for the Home Department [2013] EWCA Civ 32 (31 January 2013)
Stanley Burnton LJ in the Court of Appeal revisited the earlier decision of KA Afghanistan and found that delays on the part of the Secretary of State in determining claims, at least if not deliberate, do not justify the determination of asylum claims on an artificial basis. Nevertheless it was obvious that it would simply be inhumane to return an unaccompanied young child to a country where there will be no family to take care of him or her on arrival, particularly regarding countries such as Afghanistan. Click here to read the full judgment.

SHH v United Kingdom 60367/10 - HEJUD [2013] ECHR 102 (29 January 2013
The Strasbourg Court found that there was no evidence that disabled persons are per se at greater risk of violence, as opposed to other difficulties such as discrimination and poor humanitarian conditions, than the general Afghan population. Objections to returns to a country because of welfare difficulties where state authority had not broken down fell to be considered by the benchmark in N v United Kingdom. A medical report was not required for the domestic authorities to have complied with their duty to ascertain all relevant facts in the applicant's case where the extent of the applicant's injuries and the manner in which the applicant claimed that they had been caused were accepted by those authorities. The United Nations Convention of the Rights of Persons with Disabilities has to be read as informing the scope to be given to Article 3. Click here to read the full judgment.

Cakani v Secretary of State for Home Department [2013] EWHC 16 (Admin) (31 January 2013)
Ingrid Simler QC sitting as a Deputy High Court Judge found that paragraph 320(6) of the Immigration Rules undoubtedly assumes the existence of a practice or power to exclude, but the power itself derives from the general powers of the 1971 Act rather than from any specific authorisation in the rules themselves: it seems reasonable and rational for the relevant decision-maker faced with an application to revoke an exclusion decision to consider and apply criteria analogous to those applicable to revoking a deportation order at paragraph 391of the Immigration Rules. There was no reason why a person departing voluntarily under the FRS should not face the ten-year mandatory ban they would have faced if deported. Click here to read the full judgment.

LH (Nigeria) & Anor v Secretary of State for the Home Department [2013] EWCA Civ 26 (30 January 2013)
Davis LJ in the Court of Appeal found the question as to whether children should be separately represented in appeals was fact specific, and should be considered by the legal representatives involved by reference to the circumstances of the case, including, among other considerations, the age of the child, and the nature of the instructions received and in some cases, the tribunal may wish to check the position: all depends on the circumstances. Click here to read the full judgment.

Events

Developments in International Protection law
Tuesday 5 February 2013

Mark Symes and Peter Jorro present their regular course for ILPA on developments in International Protection law. Click here for more information.

Advocacy
7 February 2013

HJT Training presents its full-day course on advocacy giving advice on preparation, tactics and ethical issues and with a workshop that includes the opportunity to participate in two mock hearings, one involving asylum and the other dealing with entry clearance under the immigration rules. Click here for more information.

In Conversation: Giving a Voice to Marginalised Groups
12 February 2013

Garden Court Chambers, in association with sounddelivery, are delighted to host an evening exploring how organisations can use audio, video and other media to give a voice to people whose stories are rarely heard. We will hear from individuals working to give a voice to marginalised groups, ranging from migrants and the homeless to those at risk of offending. For full details and to book places, click here.

Advanced Human Rights law for immigration and asylum practitioners
Wednesday 13 February 2013
CPD Hrs: 6 (10am to 5pm)

This is an advanced course which has been updated following the recent Rule changes under (HC 194) - these seek to limit the application of Article 8 ECHR in deportation and other immigration cases. It requires legal knowledge and experience of the domestic immigration legal framework. 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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