Immigration Law Bulletin - Issue 318 – 2 April 2013

Tuesday 2 April 2013

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News

The UKBA is to be scrapped as an agency and instead two separate entities under the Home Office will deal with (1) immigration and visa services and (2) immigration law enforcement. To read further click here.

A new Life in the UK test handbook was published on 25 March from which date all tests will be based upon. To read further click here.

Cases

SS (Zimbabwe) & Others v Secretary of State for the Home Department [2013] EWCA Civ 237 (26 March 2013)
In seven conjoined appeals by Zimbabwean asylum seekers - all of whom were found to be incredible - the CA remitted them all to the UTIAC in the interests of justice in light of the SC judgment in RT (Zimbabwe) and the Country Guidance in RN (Zimbabwe) notwithstanding the promulgation of the latest UT CG in CM (Zimbabwe) (see Immigration Legal Bulletin issue number 310) between the CA hearing and handing down of judgment.
To read the full judgment click here.

FK & OK (Botswana) v Secretary of State for the Home Department [2013] EWCA Civ 238 (26 March 2013)
In a case of a mother and daughter - who had resided in the UK for 7 years mainly as a minor but then as an adult - resisting removal on Art 8 grounds, the CA rejected the contention that that their removal could not be justified under Art 8.2 because it was not pursuant to any legitimate aim specified in that provision (the appellants were law abiding and undertook voluntary work). Per Sir Stanley Burnton: maintenance of immigration control is not an aim that is implied for the purposes of article 8.2 - rather, as per Razgar and Huang, its maintenance is necessary in order to preserve or to foster the economic well-being of the country, in order to protect health and morals, and for the protection of the rights and freedoms of others. The UT had also not erred in its assessment of proportionality and its finding that the daughter could readapt to life in Botswana.
To read the full judgment click here.

Secretary of State for the Home Department v Othman (aka Abu Qatada) [2013] EWCA Civ 277 (27 March 2013)
The CA dismissed the SSHD's appeal against the SIAC's determination that the respondent faced a real risk of a flagrantly unfair trial if removed to Jordan on account of the real risk of the admission at his retrial of evidence obtained from his co-defendants by torture. The CA rejected the SSHD's assertions that: (1) SIAC erred in finding that there would be a real risk of a flagrant denial of justice on transfer to Jordan unless it could be established that, under Jordanian law, the prosecutor would bear "the burden of proving to a high standard" that the impugned statements would not be admitted in evidence at the retrial; and (2) SIAC failed to consider the question whether there was a real risk of a flagrant denial of justice in the round. Re (1) SIAC had not held that as a matter of principle the burden of proof to a high standard must be on the prosecutor in all cases, rather it had explained why on the facts of this case the only way of eliminating a real risk that the impugned statements would be admitted as evidence at the retrial would be to place the burden of proof on the prosecutor to a high standard to show that the statements would not be admitted; and the SSHD's challenge in substance merely criticised SIAC's factual assessment. Re (2) SIAC had not been overly narrow in its assessment and had dealt with all relevant possibilities, save those which were speculative and without evidential foundation.
To read the full judgment click here.

J1 v Secretary of State for the Home Department [2013] EWCA Civ 279 (27 March 2013)
The CA allowed the Ethiopian appellant's appeal from the SIAC's determination to the effect that assurances given by the Ethiopian Government were a satisfactory safeguard, even though not all the arrangements for monitoring fulfilment of those assurances were in place. Per the CA: on the findings SIAC made the only conclusion open to them was that the return of the appellant to Ethiopia would subject him to a risk of persecution which would infringe Article 3 of the European Convention.
To read the full judgment click here.

Ibrahim, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 496 (Admin) (1 March 2013)
In the case of a Syrian asylum seeker and torture victim facing removal to Bulgaria under the Dublin II Regulation, Holman J quashed the SSHD's 'clearly unfounded' certification of the claimant's Art 3 suicide risk based human rights claim.
To read the full judgment click here.

Syed (curtailment of leave - notice) [2013] UKUT 144 (IAC) (4 March 2013)
The Immigration (Notices) Regulations 2003 do not apply to a decision under the Immigration Act 1971, which is not an 'immigration decision' within the meaning of 2002 Act, s. 82; and as there is no statutory instrument under the 1971 Act dealing with the means of giving notice for the purposes of s. 4(1) of a decision under that Act, which is not an 'immigration decision' (here a decision to curtail / shorten leave but without immediate effect such that the person continued to have leave, albeit for a shorter period), the SSHD has to be able to prove that notice of such a decision was communicated to the person concerned, in order for it to be effective. Communication will be effective if made to a person authorised to receive it on that person's behalf: see Hosier v Goodall [1962] 1 All E.R. 30, but the SSHD cannot rely upon deemed postal service.
To read the full determination click here

Campbell (exclusion; Zambrano) [2013] UKUT 147 (IAC) (21 March 2013)
The UTIAC held (1) that it is settled law that the SSHD has the power to make an exclusion decision and there is nothing unlawful in such a decision being made after a claimant has made a voluntary departure from the UK; (2) there is no reason in principle why Zambrano principles cannot have application in entry clearance cases: in both in-country and out-of-country cases the Member State must ensure that any "refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union" (per Dereci).
To read the full determination click here

Immigration Law Training

Points-Based System: Refresher and Update
ILPA, Thursday 4 April 2013, 4pm in London

This course will cover the latest developments in Tiers 1, 2 4 and 5, with a particular emphasis on the changes to the immigration rules coming into force on 6 April. A chance to ensure that you have understood the effect of recent developments and the transitional arrangements and are wholly up to date. 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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