Immigration Law Bulletin - Issue 353 – 16 December 2013

Monday 16 December 2013

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Immigration Law News

The UK has been heavily criticised by Amnesty International for failing to resettle vulnerable Syrian refugees. To read further, click here.

Under a new habitual residence test, income-related benefits are to be harder for European Union migrants to obtain as they face a string of 100 questions, including the reasons they were unable to find a job in their home country. They will also be asked about their ability to speak English. To read further, click here.

Changes to EEA Regulations and Immigration Rules
The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 were laid before Parliament on 5 December and will mainly come into force on 1 January 2014. As per the explanatory memorandum, they make a number of changes to the 2006 Regulations relating to the procedural requirements for admission to the UK of some non-EEA residents of certain EEA States, the circumstances in which jobseekers and involuntarily unemployed workers are entitled to a right to reside, and introduce a number of measures to tackle the abuse of rights of residence conferred by the Directive. The Regulations also address issues arising from the implementation of certain judgments of the Court of Justice of the European Union. They make a number of other amendments to address some transposition issues, to provide procedural consistency with some aspects of the UK's domestic immigration system, and to reflect the expiration of the transitional controls on workers who are nationals of Bulgaria and Romania on 31 December 2013. To read further, click here.

For proposed changes to Immigration Rules, HC 887, inter alia making minor amendments to the Rules arising from the inclusion of the new Appendix Armed Forces and a minor change relating to Tier 1 (Graduate Entrepreneur) applicants endorsed by UK Trade and Investment, click here.

Immigration Law Cases

Nouazli, Rachid, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 1608 (10 December 2013)
The appellant, an Algerian citizen married to a French national, challenged the Secretary of State's decision to detain him while she considered making an order for his deportation to Algeria. In dismissing his appeal, the Court of Appeal held that the detention of a third country national, who was the family member of an EEA national, under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006, pending deportation / removal pursuant to regulation 19, was not incompatible with Article 27(1) of Council Directive 2004/38 which is cast in general terms and is capable of applying to any measures restricting freedom of movement which can be justified by reference to the provisions of the Directive. Furthermore, the claimant's detention did not amount to unlawful discrimination on the grounds of nationality within the meaning of Article 18 of the Treaty on the Functioning of the European Union, as this is only concerned with equality of treatment among EU nationals in Member States.
To read the full judgment, click here.

AA (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1625 (11 December 2013)
The Court of Appeal summarised the law relating to the Secretary of State's 'tracing duties', under Article 19(3) of Council Directive 2003/9/EC (the Reception Directive) and regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace the members of the family of unaccompanied asylum-seeking children: the duty is intimately connected with the determination of the asylum claim, and a failure to comply with it could, but would not necessarily, invalidate a refusal of asylum; a breach of the duty was not significant in itself, but was relevant insofar as it involved the Secretary of State's failing to comply with her duty under the Borders, Citizenship and Immigration Act 2009 s.55; moreover, a breach of the tracing duty would only impugn a refusal of asylum insofar as it permitted the claimant to say that he had been unable to rely on the fact that the Secretary of State's tracing endeavours had proved negative in order to corroborate his evidence about the absence of support in Afghanistan. Therefore, where a breach was found, the Court had to consider whether tracing would have produced information that would have affected the asylum decision. The duty was only to 'endeavour' to trace the claimant's family, and what that entailed would vary according to the circumstances of the case. Finally, where a breach invalidated the asylum decision, it did not necessarily follow that asylum was the appropriate outcome - that would depend on the circumstances. In AA's case the Secretary of State had breached her 'tracing duty' but he had failed to demonstrate that her breach had any material affect on her negative asylum decision.
To read the full judgment, click here.

TN (Afghanistan) & MA (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1609 (12 December 2013)
The Court of Appeal held, in the case of Afghan unaccompanied minors who had been granted less than one year's discretionary leave to remain until aged 17½, that although they could not appeal under 2002 Act, s.83 against refusal of asylum followed by grant of less than a year's leave, the availability of judicial review provided them with a sufficient and effective remedy for the purposes of both Article 13, ECHR and Article 39 of Council Directive 2005/85/EC (the Procedures Directive). Maurice Kay LJ, giving the lead judgment, also rejected the appellants' submission that the principle in Ravichandran, to the effect that on appeal the Tribunal considers the up-to-date situation (rather than looks back to decide whether the appellant was a refugee at date of decision), offended EU law principles and the need for an effective remedy against the initial refusal of asylum. Obiter and in the alternative, Beatson LJ (with some support from Briggs LJ) considered that the grant of a short period of discretionary leave followed by a right of appeal under 2002 Act, s.82 once the applicant had reached majority, against an immigration decision following a further refusal of asylum, would also constitute an effective remedy.
To read the full judgment, click here.

P (DRC), R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin) (9 December 2013)
Phillips J held that 'P' as a criminal deportee would be at risk of treatment in breach of Article 3 of the ECHR if deported to the Democratic Republic of the Congo. He stated that he reached this conclusion "with considerable regret given the nature and extent of P's criminal record in this country" but was persuaded by the objective material. The risk however does not extend to failed asylum seekers for whom the position remains the same as in BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098.
To read the full judgment, click here.

Foo Ann Ku, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3881 (Admin) (9 December 2013)
The claimant was a British Overseas Citizen (BOC) without right of abode in the UK who had renounced his Malaysian nationality in 2008 (and so after the deadline in British Nationality Act 1981, s.4B). In December 2011, he was removed as an overstayer to Malaysia but the Malaysian authorities would not admit him and returned him to the UK. He challenged the lawfulness of the Secretary of State's decision to remove him and her application to him of her "limbo policy" in respect to persons in his position (if the BOC applicant can prove, by producing letters from the state authorities, that s/he cannot be returned then a period of discretionary leave may be granted). The Deputy High Court Judge held that on the evidence of correspondence and consultations between the UK and Malaysian authorities over persons in the claimant's position (BOCs who had renounced their Malaysian citizenship - 500 to 1000 such persons) the decision to remove had been lawful because the Secretary of State had had "reason to believe" that he would be admitted to Malaysia as per regulation 4(2)(ii) of the Immigration (Removal Directions) Regulations 2000. The Judge also rejected the challenge to the application of the "limbo policy" to the claimant on the grounds inter alia that he had never presented any letter from the Malaysian authorities and had indeed made no attempts to re-acquire his nationality.
To read the full judgment, click here.

Warnborough College Limited, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3915 (Admin) (13 December 2013)
The claimant college challenged the Secretary of State's refusal to it of Highly Trusted Sponsor (HTS) status under the Tier 4 (General) points-based system on the grounds that the number of students who had been refused leave to enter or remain by the Secretary of State following the grant of a Certificate of Acceptance of Studies (CAS) by the college had exceeded 20% of the total number of individuals to whom it had granted a CAS over the previous 12 months. Jeremy Baker J rejected the claimant's assertions: (1) that the maintenance of the 20% refusal rate threshold as a criterion for granting HTS to colleges is unlawful, as being irrational and/or unfair; and (2) that the Secretary of State had unlawfully fettered, in the claimant's case, her acknowledged discretion to grant HTS to colleges whose refusal rate is beyond the threshold.
To read the full judgment, click here.

Immigration Law Training

Good character in applications for naturalisation and registration
ILPA Thursday 19 December 2013, 15:00 to 16:00, London
Join Garden Court's Adrian Berry, ILPA Chair, and Alison Harvey, ILPA Legal Director, as they present ILPA's first ever webinar training - a one hour look at the Good Character requirements in naturalisation and registration applications.
Click here for more information.

Four-day training - LAA (LSC) 2/OISC 3 Accreditation
Tuesday 7 January 2014 to Friday 10 January 2014, 10:00 to 17:00, London
HJT Training run their four-day training course designed to cater expressly for the various immigration accreditation exams, including the new-style OISC exams.
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 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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