Immigration Law Bulletin - Issue 323 - 7 May 2013

Tuesday 7 May 2013

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Immigration Law Cases

Asmeron v R [2013] EWCA Crim 435 (11 April 2013)
In quashing the conviction of an Eritrean asylum seeker under 2004 Act, s. 2 - for entering into the UK without a passport - the CA criticized the trial judge for ruling prior to hearing evidence that he had no defence to the charge. The appellant's defence, that he had a reasonable excuse for not having his genuine passport because he gave it on demand to an agent (s. 2(4)(c)), should have been left for the jury to decide upon, even if the judge considered it hopeless, and in any event there would have been no perversity in a jury concluding on the evidence that the s.2(4)(c) defence was made out. Toulson LJ described the Crown's alternative argument, that the appellant would have had to also have had a reasonable excuse for not producing the false passport given to him by the agent, as fallacious: the charge under sub-s. (1) and the defence under sub-s. (4)(c) relate to genuine immigration documents and whereas there is an alternative defence under sub-s. (4)(d) in terms of producing a false document as used for travel, this is clearly in the alternative to the (4)(c) defence.
To read the full judgment click here.

Ehmed, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 876 (Admin) (18 April 2013)
Mr Ockelton, sitting as a Deputy High Court Judge, stayed the Syrian applicant's application for permission to apply for judicial review of his proposed removal to Cyprus under the Dublin II Regulation until such time as the SC have determined the appeal in EM (Eritrea) (relating to removal under Dublin II to Italy and raising the issues of whether there is a need to show 'systemic deficiency' and what that means; or whether it is sufficient for an individual to show that the system will let him down, even if there is not a 'systemic deficiency') and also stayed the applicant's actual removal to Cyprus until the CA has decided the SSHD's challenge to a stay ordered by Sir Richard Buxton in case called FM (Iran) relating to Dublin II removal to Cyprus. The Deputy Judge made clear that his decision was influenced by the fact that the applicant had previously been removed from Cyprus to Syria and that it was not his view that all Dublin removals to Cyprus should necessarily be stayed.
To read the full judgment click here

Kamara, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 959 (Admin) (26 April)
Collins J, in holding that the last four months of the claimant's 3½ year detention under immigration powers (nationality dispute, lack of co-operation with removal process etc) was unlawful, stated at § 25: "As must be obvious, lack of co-operation or obstructive behaviour can justify a longer detention as can problems created by past deception and dishonesty. In addition, as is clear from the narrative set out, the High Commissions of each country take some time to set up interviews and reach decisions. It is to be noted that the period in Hardial Singh which Woolf J regarded as bordering on unreasonable was only some 4 months, but since then courts have recognised the increased pressure of numbers on UKBA and the difficulties in obtaining ETDs so that periods of over 3 years have been upheld. All will depend on the facts of the particular case, but a period such as existed in this case requires clear justification."
To read the full judgment click here

Khatoon (Sarah), R (on the application of) v (1) Entry Clearance Officer Islamabad & (2) Upper Tribunal (Immigration and Asylum Chamber) [2013] EWHC 972 (Admin) (26 April 2013)
On a substantive Cart JR, Wyn Williams J rejected the claimant's assertions that: (1) Immigration Rules, para. 27 compelled an ECO and the Tribunal to treat for Art. 8 purposes a person who was under 18 at the time of an application but who turned 18 before a decision was made as if she had remained under the age of 18 at the time of the decision; (2) the FTT Judge had erred in failing to consider the Art. 8 claim of her own motion, and that the UT Judge had erred in failing to grant permission to appeal in respect of the potential Art 8 claim. Re (1) para 27 only applied to the application under the Rules themselves and did not extend to the Art. 8 aspect of a claim / appeal. Re (2) the Art. 8 claim was far from Robinson obvious and indeed was more likely to fail than succeed. Note that in rejecting the substantive JR challenge to the UT's permission refusal, Wyn Williams J followed the approach of Charles J in R (HS & Others) v the Upper Tribunal [2012] EWHC 3126 (Admin) to the effect that the Cart / second appeals test only applied at the JR permission stage.
To read the full judgment click here.

Syed & Ahmed, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 984 (Admin) (26 April 2013)
Holman J rejected the claimants' claim that the professional level qualification of the Association of Chartered Certified Accountants (ACCA) qualified or counted as a qualification which entitled an applicant (if otherwise qualified) to leave to remain under the (now abolished) Tier 1 (Post - Study Work) Migrants route of the Points Based System. In short, under Appendix A - Attributes, for this route, the applicant had to have a degree and the ACCA qualification is not a degree.
To read the full judgment click here.

Singh (fee award: ancillary decision) [2013] UKUT 179 (IAC) (18 April 2013)
The UT held that it does not have jurisdiction to consider a challenge to a decision of a First-tier Tribunal Judge to make, or to not make, a fee award. A decision on a fee award is an ancillary decision within the meaning of the Appeals (Excluded decisions) Order 2009 and is therefore not appealable to the UT.
To read the full determination click here.

Zubair (EEA regs: self-employed persons) [2013] UKUT 196 (IAC) (11 April 2013)
The UT chaired by the President considered that the provisions of the Immigration (European Economic Area) Regulations 2006 concerning, respectively, self-employed persons and (employed) workers ultimately derive from different previous Directives and cannot be elided, so as, to create e.g. a concept of "self-employment seeking"; and held that a person cannot combine a period of self-employment with a period of seeking employment, so as to achieve a requisite period of residence under the Regulations.
To read the full determination click here.

Immigration Law Training

Nationality Masterclass I
ILPA, Wednesday 8 May 2013, 10am in London

Laurie Fransman QC & Adrian Berry of Garden Court Chambers and Alison Harvey of ILPA will provide useful practical information about handling nationality applications and have their eyes opened to strategies and tactics that will assist them in their practice.
Click here for more information.

Home Office policy, concessions & the exercise of discretion outside the rules
ILPA / HJT, Thursday 9 May 2013, 2pm in Birmingham

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.

Cessation, Cancellation and Revocation of Refugee Status in the UK
ILPA / UNHCR, Monday 13 May 2013, 5pm in London

Alan Deve of UNHCR will equip practitioners with an understanding of the various ways refugee status is taken away and to give practical tips on how to properly respond to letters from the UK Border Agency seeking to cease, cancel or revoke refugee status.
Click here for more information.

JCWI Training: Tier 2 and the New April 2013 Changes - what you need to know
Wednesday 15 May 2013

Rimmy Bedi of Magrath LLP and Navtej Singh Ahluwalia of Garden Court Chambers provide training on the effect of the recent developments on the Tier 2 requirements from April 2013.
Click here for more information.

AVID: 4000 and rising: the expansion of immigration detention in the UK
Wednesday 22 May

The Association of Visitors to Immigration Detainees are holding their AGM, which includes a themed discussion on increased use of immigration detention. 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.

Immigration Practice and Procedure in Family Proceedings
This practical new work by Nadine Finch, Omar Shibli, Anthony Vaughan concentrates on the immigration procedures, law and rules relevant to family proceedings. Price: £60.00. For full details click here.

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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