Immigration Law Bulletin - Issue 349 - 18 November 2013

Monday 18 November 2013

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Immigration Law News

The UNHCR has expressed great concerns over reports that some European Union countries were placing barriers to entry or forcibly returning asylum-seekers, including people who have fled Syria. To read further, click here.

The Government has announced a consultation looking at immigration fees charging principles. This began on 12 November 2013 and will last for three weeks. To read further, click here.

UKBA announces that following an open competition, grant funding has been awarded to the British Refugee Council and Migrant Helpline to provide advice and guidance to asylum seekers. The new grants will start from 1 April 2014. To read further, click here.

Immigration Law Cases

Demir v Staatssecretaris van Justitie [2013] EUECJ C-225/12 (7 November 2013)
In the case of a Turkish national, living in the Netherlands but separated from his Dutch wife, who had been refused a residence permit on the basis of his employment, the Court of Justice of the European Union (CJEU) ruled that: (1) the standstill clause in Article 13 of Decision No 1/80 of the Association Council on the development of the Association between Turkey and the EU (relating to employment rights in the EU for Turkish nationals under the umbrella of the Ankara Agreement), must be interpreted as meaning that where a measure taken by a host member state seeks to define the criteria for the lawfulness of the Turkish nationals' situation, by adopting or amending the substantive and/or procedural conditions relating to entry, residence and, where applicable, employment, of those nationals in its territory, and where those conditions constitute a new restriction of the exercise of the freedom of movement of Turkish workers, within the meaning of the 'standstill' clause set out in Article 13, the mere fact that the purpose of the measure is to prevent, before an application for a residence permit is made, unlawful entry and residence, does not preclude the application of that clause. (2) Article 13 of Decision No 1/80, must be interpreted as meaning that holding a temporary residence permit, which is valid only pending a final decision on the right of residence, does not fall within the meaning of 'legally resident'.
To read the full judgment, click here.

Bundesrepublik Deutschland v Kaveh Puid [2013] EUECJ C-4/11 (14 November 2013)
The Court of Justice of the European Union (CJEU) considered a request for a preliminary ruling concerning the interpretation of Article 3(2) of the Dublin II Regulation which provides for derogation from the Dublin II criteria such that a given member state can effectively choose to examine an asylum claim lodged with it by a third-country national. The factual context related to the German authorities removing an Iranian asylum seeker to Greece with all the well known problems related thereto. Three of the four issues referred to the CJEU had already been determined in N. S. and Others [2011] ECR I-0000. The remaining issue was: "Does an enforceable personal right on the part of the asylum seeker to force a member state to assume responsibility result from the duty of the member states to exercise their right under the first sentence of Article 3(2) of [the] Regulation?" The Court ruled that: (1) Where the Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum seekers in the member state, initially identified as responsible in accordance with the criteria set out in Chapter III of the Dublin II Regulation, provide substantial grounds for believing that the asylum seeker concerned would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, which is a matter for the referring court to verify, the member state which is determining the member state responsible is required not to transfer the asylum seeker to the member state initially identified as responsible and, subject to the exercise of the right itself to examine the application, to continue to examine the criteria set out in that chapter, in order to establish whether another member state can be identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of the Regulation (being the default rule that it is the first member state with which an application for asylum was lodged that is to be responsible for examining it). (2) Conversely, in such a situation, a finding that it is impossible to transfer an asylum seeker to the member state initially identified as responsible does not in itself mean that the member state which is determining the member state responsible is required itself, under Article 3(2) of the Regulation, to examine the application for asylum.
To read the full judgment, click here.

Saleh (Sudan), R (on the application of) v Secretary of State for the Home Department [2013] EWCA 1378 (12 November 2013)
The Sudanese, Darfuri claimant, who having been sentenced to four years' imprisonment for sexual offences, was held in immigration detention for some 15 months from the date of his prison release in May 2009 until the Secretary of State made a decision that he should be subject to automatic deportation in August 2010 (he remained in immigration detention for a further nine months until he was released in late May 2011 after his appeal was finally allowed on Article 3 grounds). On appeal to the Court of Appeal the claimant contended inter alia that the time taken by the Secretary of State to reach her decision was not a 'reasonable period' indicating the necessary deployment of 'due diligence' in the administrative process. McFarlane LJ gave the only reasoned judgment and, having concluded that 'burden of proof' is inapt in the context of assessing or 'evaluating' reasonableness, noted that there appeared to have been cumulatively a 12 month period (within the 15 months) during which little or no administrative activity was taking place on the part of the Secretary of State towards progressing the decision making process and held that at least two thirds of the 12 month period, and therefore eight months, could only be seen as falling on the unreasonable side of the line and therefore held that eight months, of the total period of 15 months in immigration detention, was unreasonable and therefore unlawful.
To read the full judgment, click here.

Bali (Family member: three month visit) [2013] UKUT 570 (IAC) (28 October 2013)
The Entry Clearance Officer, Beirut (ECO), appealed against the First-tier Tribunal's determination allowing the applicant's appeal against the refusal of a family permit, on the grounds that it was arguable that the First-tier Tribunal judge had erred in law because the applicant was merely intending to visit and would therefore not be residing in the UK in accordance with the Immigration (European Economic Area) Regulations 2006 (the EEA Regulations) and his German wife was not and would not on arrival be a qualified person. In dismissing the ECO's appeal, the Upper Tribunal held that a non-EEA national family member travelling to the UK accompanied by the EEA national family member concerned for the purpose of a visit of not more than three months' duration is entitled to enter, pursuant to regulations 11(2), 12(1) and 13(1) and (2) of the EEA Regulations, read together.
To read the full determination, click here.

Immigration Law Training

Prevention of illegal working and civil penalties
ILPA Wednesday 20 November 2013, 16:00, London
Delegates who attend this session will learn about the operational and practical side of prevention of illegal working obligations on employers.
For more information, click here.

How to pass your OISC level 1 exam
Wednesday 20 November, 15:00 to 18:00
HJT Training run their training course for the new-style OISC exams.
For more information and to book places, click here.

How to pass your OISC level 2 and 3 exam
Monday 25 November, 10:00 to 17:00
For more information and to book places, click here.

Refugee and International Protection Law Update
Monday 25 November, 16:00
CPD: 3:00 Hours
Mark Symes and Peter Jorro of Garden Court Chambers present their regular Refugee and International Protection Update for ILPA.
For more information and to book places, click here.

Immigration update - The changes
Tuesday 26 November, 16:00 to 19:00
HJT presents its Immigration Update concentrating on the recent announcements as to the future for appeals including human rights issues, and on the changes to the system for running judicial review challenges.
For more information and to book places, click here.

Indefinite leave to remain - all you need to know
ILPA Wednesday 27 November 2013, 4pm, in London
Everything you need to know about applying for indefinite leave to remain including family applications, work routes and long residence.
For more information, click here.

Tier 1 and Tier 5
Friday 6 December 2013, 12:45 to 17:00
JCWI, Central London
CPD: 4:00 hours
Speakers include Navtej Singh Ahluwalia of Garden Court Chambers. For more information and to book places, 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: £36.00. For full details, click here.

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