Immigration Law Bulletin - Issue 326 - 28 May 2013

Tuesday 28 May 2013

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News

New Home Office statistics show net migration is decreasing. To read further click here

Cases

SL v Westminster City Council [2013] UKSC 27 (9 May 2013)
Allowing the Council's appeal from the CA and reinstating Burnett J's High Court order, the SC held that the Council did not owe a duty to provide SL with accommodation under s.21(1)(a) of the National Assistance Act 1948. The Council was entitled to conclude that the services provided to SL (meetings with mental health professionals and weekly meetings with a social worker) were available otherwise than by the provision of accommodation under s.21 because they were entirely independent of SL's accommodation arrangements. The words "not otherwise available" in s. 21(1)(a) govern "care and attention" not "accommodation". The Court of Appeal was wrong to read the word "available" in s. 21(1)(a) as meaning not merely available in fact but also available in a manner that is reasonably practicable and efficacious. Whether the criterion of "not otherwise available" is satisfied in any particular case is best left to the judgment and common sense of the local authority concerned. To read the full judgment click here.

Soares v Secretary of State for the Home Department [2013] EWCA Civ 575 (21 May 2013)
The Brazilian appellant had been dependant on his aunt and a member of her household in Brazil before she came to live in the UK with her Italian husband. He joined them as a visitor and overstayed. The SSHD refused to issue him with a residence card. The CA rejected his claim that EEA Regs 2006, reg. 8 should be construed so as to extend not only to dependence on (or household membership of) an EEA national but also to dependence on (or household membership of) a spouse or partner of an EEA national. Reg 8(2)(a) and (c) do not extend to dependence on or household membership of a spouse or partner of the EEA national and there was no obligation on the UK to extend the qualifying categories wider than required by the Citizens' Directive which in this respect left the required facilitation to the host member states in accordance with its own national legislation. To read the full judgment click here.

SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550 (22 May 2013)
In dismissing the appeal of a 'foreign criminal' convicted of class A drug dealing and who had had no leave to remain in the UK but who had a British child, Laws LJ gave a detailed analysis of Article 8 law and concluded that: (1) the principle of minimal interference is the essence of proportionality: it ensures that the ECHR right in question is never treated as a token or a ritual, and thus guarantees its force. (2) In a child case the right in question (the child's best interests) is always a consideration of substantial importance. (3) Article 8 contains no rule of "exceptionality", but the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. (4) Upon the question whether the principle of minimal interference is fulfilled, the primary decision-maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. This approach strikes two balances: the balance between public interest and private right, the search for which "is inherent in the whole of the [ECHR]"; and the constitutional balance between judicial power and the power of elected government, and in particular the power of the legislature. Mann J gave a brief concurring judgment in which he agreed with Laws LJ that the circumstances in which the Tribunal will require further inquiries to be made, or evidence to be obtained, as to the relevant interests of a child, are likely to be extremely rare. To read the full judgment click here.

A, B & C, R (on the application of) v (1) Upper Tribunal (Immigration and Asylum Chamber) & (2) Secretary of State for the Home Department [2013] EWHC 1272 (Admin) (22 May 2013)
In a detailed judgment HHJ Anthony Thornton QC granted the claimants permission to apply for judicial review of the UT's refusal of permission to appeal from the FTT's determination dismissing their appeals against deportation decisions consequent to A's conviction on four counts involving offences that related to her attempt to facilitate the admission into the UK of two Ghanaian minors who were unrelated to her using false German identification documents. A was a German national formerly a Ghanaian national and B and C were her children, also it seems German nationals. A had been sentenced however on the mistaken basis that she was a Ghanaian national. Neither the SSHD nor the FTT had taken proper consideration of EU law issues in deciding to deport A and for this and other reasons the Cart threshold was reached for a challenge to the UT's decision in refusing permission to appeal. To read the full judgment click here.

MJ (Singh v Belgium : Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 253 (IAC) (1 May 2013)
The UT held that the conclusions of the ECtHR in Singh v Belgium (Application No. 33210/2011) neither justify nor require any departure from the guidance set out in Tanveer Ahmed [2002] Imm AR 318 (starred) as regards the proper approach to documentation adduced in asylum appeals. To read the full determination click here.

Green (Article 8 - new rules) [2013] UKUT 254 (IAC) (13 May 2013)
In dismissing the SSHD's appeal the UT reaffirmed, inter alia, that FTT judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim. Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu. To read the full determination click here.

Immigration Law Training

Initiating and Running an Immigration Judicial Review
ILPA, Tuesday 4 June 2013, 14:00, Manchester
The speakers will provide useful practical information about handling nationality applications and have delegates' eyes opened to strategies and tactics that will assist them in their practice. Click here for more information.

Human Rights Update

HJT Training, Tuesday 4 June 2013, 4pm in London
David Jones of Garden Court Chambers will focus on case law developments in respect of all of the critical convention Articles including 3, 4 (including trafficking), 5 (including unlawful detention), and 8, with particular emphasis in the latter regard on the progress of litigation relating to the construction and application of Appendix FM. 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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