Immigration Law Bulletin - Issue 311 – 11 February 2013

Monday 11 February 2013

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News

For the highly critical report of the cross-party parliamentary inquiry into asylum support for children and young people and the Children's Society's comments on the same, click here.

Immigration Rules
New changes to the Immigration Rules by way of HC943 came into effect on 31 January 2013 making changes to the Tier 1 (Entrepreneur) route. For the UKBA summary and to see the new rules, click here.

Cases

Mostafa Abed El Karem El Kott & Others v Bevándorlási és Állampolgársági Hivatal (Case C-364/11) (19 December 2012)
The Grand Chamber of the CJEU held that on its proper interpretation, Art 12(1)(a) of the Qualification Directive (and see Art 1D of the Refugee Convention), the cessation of protection or assistance from organs or agencies of the UN other than the UNHCR, "for any reason" included the situation in which a person who, after actually availing himself of such protection or assistance, had ceased to receive it for a reason beyond his control and independent of his volition. Accordingly three Palestinian asylum claimants in Hungary, who had been registered with the UNRWA and had resided in camps in Lebanon and who had been forced (on their credible claims) to flee those camps for reasons of threats and or violence were entitled to refugee status - as would any such previously UNRWA 'protected' Palestinian who can credibly claim to have been forced out against his or her will from a UNRWA camp in Lebanon, Syria, Jordan, the West Bank (including East Jerusalem) or the Gaza Strip, subject of course to not being excluded under QD Art 12(1)(b), (2) or (3) (cf. Refugee Convention, Arts 1e & 1F).
To read the full judgment click here.
[See also Said (Article 1D: meaning) Palestinian Territories [2012] UKUT 413 (IAC) and see Immigration Legal Bulletin Issue 301]

Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42 (6 February 2013)
Sir Stanley Burnton reiterated his judgment in MA (Ethiopia) to the effect that in contrast to the question of risk of persecution on return, inability to return is to be proved on the balance of probabilities, and held that as the UT Judge had merely found that there was a reasonable degree of likelihood that the appellant was a Palestinian and thus may not be able to be returned to Saudi Arabia but that the SSHD may need to undertake further enquiries, the UT Judge had not erred in rejecting the appellant's submission that he should be granted leave on Art 8 grounds while any such enquiries are made and in holding that Art 8 was not engaged. Beatson LJ added that as regards "limbo" type claims for leave on Art 8 grounds, the time after which the "limbo" argument can come into play may depend on the attitude of the individual concerned to efforts to establish his or her nationality or to obtain documentation.
To read the full judgment click here.

Thebo, R (on the application of) v Entry Clearance Officer, Islamabad [2013] EWHC 146 (Admin) (5 February 2013)
Mostyn J rejected the would-be Tier 2 (General) Migrant claimant's submission that Immigration Rules, paras 320(7A) & (7B) are unlawful as being excessively mandatory such as to emasculate any residual discretion. Mostyn J agreed with the SSHD that the effect of Alvi was not to abrogate entirely the residual discretion of the SSHD to make decisions in favour of migrants which are more favourable than a literal reading of the Rules allows and held that in any event rules 320(7A) & (7B) fall outwith the no-fettering of discretion principle and lay down a rational 'bright-line' in controlling immigration. The judge also found the claimant to have acted dishonestly in her application for entry clearance by a "combination of deliberately false representations and extensive dishonest nondisclosure" as regards her past immigration history. Per Mostyn J at [40]: "In my opinion there is a duty of candour imposed on an applicant completing this [entry clearance application] form. What is not acceptable is to answer the questions au pied de la lettre. It is unacceptable to give literal answers which may be the truth but which on any view do not comprise the whole truth."
To read the full judgment click here.

Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC) (31 January 2013)
An interesting decision from the UTIAC chaired by McCloskey J allowing the Tier 4 applicant's appeal on 'not in accordance with the law' grounds for the failure of the UKBA to apply or consider their 'flexibility policy' when refusing her PBS application for want of adequate bank statements as sent with the initial application. Whether the benefit to PBS applicants of this determination - relating to an application made under the PBS in January 2012 - can survive Immigration Rules para 245AA as introduced in September 2012 (and see para [25] of the determination) remains to be seen.
To read the full determination click here.

Events

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.

Comprehensive Sickness Insurance for EEA Nationals and their family members: What Counts
ILPA, Wednesday 13 February 2013, 4pm in London

Tutors: Adrian Berry, Garden Court Chambers along with John Walsh, Doughty Street Chambers and Adam Weiss of the Aire Centre. Is NHS cover sufficient to meet the requirement that self-sufficient EEA nationals and EEA national students have comprehensive sickness insurance cover? What about other cases?
Click here for more information.

Home Office policy, concessions & the exercise of discretion outside the rules
ILPA, Monday 18 February 2013, 4pm in London

Tutor: Alison Stanley, Bindmans LLP, Colin Yeo, Renaissance Chambers, Meghan Vozila, Sturtivant & Co. ILPA's unique training on Home Office UKBA policies and concessions outside the immigration rules in immigration and nationality (not asylum) cases - where to find them, what they cover, pitfalls and how to use them in your clients' cases, run in conjunction with HJT training.
Click here for more information.

Appeals for Points Based System Specialists
On Tuesday 12th February

HJT Training presents a course "Appeals for Points Based System Specialists" dealing with all aspects of the PBS including all aspects of the lodging and preparation of appeals.
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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