Immigration Law Bulletin - Issue 341 - 23 September 2013

Monday 23 September 2013

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Immigration Law Cases

Rahim, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2794 (Admin) 13 September 2013
Mr Ockelton, sitting as a Deputy High Court Judge (DHCJ), held in the case of an Iraqi national who had originally claimed asylum in 2003 but who in 2010 had gone to Belgium (and had then been returned to the UK under the Dublin II Regulation), that he had no legitimate expectation of a grant of indefinite leave to remain (ILR) under the 'legacy' because his voluntary departure had concluded his pre-2007 asylum claim.
To read the full judgment, click here.

Kasonga & Anor, Re Judicial Review [2013] ScotCS CSOH 152, 10 September 2013
In rejecting a judicial review petition by two siblings refused registration as British citizens by the Secretary of State for the Home Department (SSHD) acting, as she asserted, within the terms of her policy guidance, in particular on the basis that neither fitted within the exceptional criteria of "older teenagers who have spent most of their life here", Lord Glennie inter alia rejected the argument that 'most' meant merely more than half: at [13]: "The word "most" is somewhat flexible. It may refer to a bare majority of time, of votes or whatever may be the subject matter of the discussion. But it may also be used to mean something significantly more or less than that. If a person says that he spends "most of the winter" in France, he probably does not simply mean that he spent a bare majority of the winter there. If a person is discussing the likelihood of one of a number of events occurring, the most likely will simply be that which is more likely than the others, even though the degree of likelihood is less than 50%. Accordingly, depending upon the context, the word "most" may have a less precise, almost qualitative, meaning. It seems to me that, in applying her own guidance, the Secretary of State was entitled to take the view that, notwithstanding that he had been in the UK for a bare majority of his 16 years, David had not spent "most" of his life in the UK."
To read the full judgment, click here.

Lim (EEA - dependency) [2013] UKUT 437 (IAC) 7 August 2013
In dismissing an appeal by the SSHD in the case of a retired Malaysian woman who, although she had substantial savings in an Employers' Provident Fund, received remittances from her daughter, married to a Finnish national, in the UK, the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) held that subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not take up employment (see Centre Publique d'Aide Social de Courcelles v Lebon [1987] ECR 2811 at [22]) and it may be very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is a question of fact and the reasons why there is dependency are irrelevant. The Upper Tribunal Judge (UTJ) decided not to refer the matter to the Court of Justice, instead leaving it to the entry clearance officer (ECO) to apply for permission to appeal to the Court of Appeal if so inclined and advised.
To read the full determination, click here.

Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 439 (IAC) 30 August 2013
The UTIAC held that in an appeal under s.40A of the British Nationality Act 1981 against a decision to deprive a person of British citizenship, the Tribunal is required to consider whether the SSHD's discretionary decision to deprive should be exercised differently. This will involve (but not be limited to) ECHR Article 8 issues, as well as the question whether deprivation would be a disproportionate interference with a person's EU rights. Although, unlike 2002 Act, s.84 (1) (g), 1981 Act, s.40A does not involve any statutory hypothesis that the appellant will be removed from the UK in consequence of the deprivation decision, the Tribunal is required to determine the reasonably foreseeable consequences of deprivation, which may, depending on the facts, include removal. A person who, immediately before becoming a British citizen, had indefinite leave to remain in the UK, does not automatically become entitled to such leave, upon being deprived of such citizenship.
To read the full determination, click here.

Naeem (Para 120A of Appendix A) [2013] UKUT 465 (IAC) 3 September 2013
The UTIAC rejected the appellant's case that para 120A of Appendix A to the Immigration Rules (denying the required 30 points on the basis of a Confirmation of Acceptance of Studies (CAS) as per paras 113-120 where the proposed new course of study does not represent academic progress from previous course of study with leave as a Tier 4 student) could not be used to deny him requisite points, because para 245ZX(c) of the Rules required him only to have the points under "paragraphs 113 to 120 of Appendix A", without any reference to para 120A of Appendix A. Per the Uppre Tribunal (UT) at [8]: "The Rules have to be read as a whole. It is not open to an applicant or appellant to say that a paragraph of the Rules of general application, does not apply in his case." Furthermore the fact that he had only achieved level 4 NQF/QCF in his previous course, whereas the proposed study was at Level Five, did not assist him because he had been granted leave in 2009 in respect of a three-year course comprising Levels Four, Five and Six.
To read the full determination, click here.

Singh (No immigration decision - jurisdiction) [2013] UKUT 440 (IAC) 6 September 2013
The UTIAC cautioned First-tier Tribunal (FTT) Judges to ensure that a copy of the notice of the "immigration decision", as defined in 2002 Act, s.82(2), exists and is produced before embarking on consideration of an appeal under s.82(1) so as to avoid the risk of proceeding without jurisdiction.
To read the full determination, click here.

Mohammed (late application - First-tier Tribunal) [2013] UKUT 467 (IAC) 18 September 2013
In a case where the applicant had made a very late application to the FTT for permission to appeal to the UT and where an FTT Judge had purported to grant permission conditional on whether, after proper enquiry, special circumstances are established which would render it unjust not to extend time, the UTIAC ruled that there is no power for a judge of the FTT to make a conditional grant of permission to appeal such that the decision was defective. The UT panel then reconstituted themselves as an FTT panel and declined to extend time and so refused to admit the application for permission to appeal.
To read the full determination, click here.

Immigration Law Courses and Training

Article 8 Update
Tuesday 24 September 2013, 16:00, London
Immigration Law Practitioners' Association
3 Hours CPD. Garden Court's Sonali Naik, along with David Chirico, return with this popular course that will ensure that you are fully up to date with all the latest caselaw, rules and developments and equipped to identify and deal with Article 8 points arising in your practice.
For further information, click here.

Tier 1 investors and entrepreneurs
Thursday 26 September 2013, 16:00, London
Immigration Law Practitioners' Association
3 Hours CPD. This course aims to provide attendees with a comprehensive knowledge and advanced understanding of the Tier 1 entrepreneur and investor categories, including recent rule changes and policy developments.
For further information, click here.

Advanced human rights law for immigration and asylum practitioners
Wednesday 16 October 13, 10:00 to 17:00, Central London
6 Hours CPD. Trainer: Navtej Singh Ahluwalia of Garden Court Chambers.
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.
For further information, click here.

Judicial Review Conference 2013 + HJT's 10 Year Anniversary
Tuesday 22 October 2013, London.
5 Hours CPD. The conference features leading immigration and asylum practitioners who will discuss the implications of the latest developments in judicial review in the immigration field. Speakers include Stephen Knafler QC, Mark Symes, David Jones and Colin Yeo of Garden Court Chambers.
For further information, click here.

JUSTICE Human Rights Law Conference
Thursday 24 October 09.30 - 17.00, Bloomsbury Hotel, London
6.5 hours CPD. Now in its 15th year, this annual conference is the acknowledged forum for ensuring that delegates are fully up to date with developments in human rights law. Speakers include Duran Seddon of Garden Court Chambers.
For further information, click here.

Tier 2 and the April 2013 Changes - what you need to know
Friday 25 October, 10.00 - 17.00, Central London.
6 Hours CPD. This course provides up to date knowledge and understanding of the effect of the recent developments on the Tier 2 requirements from April 2013. Speakers include Navtej Singh Ahluwalia of Garden Court Chambers.
For further information, click here.

Other Events

Gender, Violence and Asylum: A Troubling Trilogy?
Refugee Law Initiative, University of London
Monday, 28 October 2013, 16:00 - 18:00
This event covers the role and relevance of sexual violation within the asylum claims of women who have experienced rape in their country of origin. Speakers include Frances Webber, door tenant at Garden Court Chambers.
For more information, click here.

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 has been published. 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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