Immigration Law Bulletin - Issue 359 - 17 February 2014

Monday 17 February 2014

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Immigration Law News

The Government has renewed the immigration concession for Syrian nationals for another year, until 28 February 2015. This concession gives greater flexibility to Syrian nationals who are in the UK on a visa, by offering them more ways to extend their stay in the UK. To read further, click here.

Immigration Law Cases

Khan (Mohammed Iqbal) v Secretary of State for the Home Department [2014] EWCA Civ 88 (11 February 2014)
The appellant had unsuccessfully appealed against a decision to make a deportation order. By further submissions that included a social worker's report, relating to his contact with his children, he sought to revoke the deportation order. On refusing to revoke the order, the Secretary of State also issued a certificate under section 96(1) of the Nationality, Immigration and Asylum Act 2002, thereby preventing a right of appeal to the Tribunal. The appellant sought judicial review of the certification but was refused by Turner J. On appeal, the Court of Appeal held that the intention of s. 96(1) was to prevent claimants from advancing on a new appeal new points and/or new material in aid of old points which might reasonably have been advanced in a previous appeal; s. 96(1) was properly directed to the advancing of new material as a whole, either in grounds of appeal or evidence in support. The social worker's report fell within the definition in s. 96(1) of a "matter" that could have been raised in the earlier appeal such that the report could not be relied upon as grounds for a new appeal. Appeal dismissed.
To read the full judgment, click here.

Rahman (Md Mahamudur) v Secretary of State for the Home Department [2014] EWCA Civ 11 (12 February 2014)
The appellant had been refused variation of leave as a Tier 4 student and at the same time a removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006 (pre-amendment) had been served on him. It was common ground that the pre-amendment removal decision was unlawful (see Secretary of State for the Home Department v Javad Ahmadi [2013] EWCA Civ 512) but the appellant asserted that the unlawful removal decision also vitiated the variation decision which had been notified at the same time. Richards LJ (giving the only reasoned judgment) comprehensively rejected this submission by reference to the statutory scheme, considerations of principle and as based on authority. He also rejected the appellant's alternative submission that the Secretary of State had been under a duty of fairness to give him an opportunity to address deficiencies in his 'Confirmation of Studies' (CAS) before refusing his variation application. To read the full judgment, click here.

Ahmed, Iftikhar, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 300 (Admin) (14 February 2014)
Green J, in dismissing the claimant's challenge to a refusal of leave to remain (application made as an overstayer), considered the nature and operation of the so-called two part test for the evaluation of Article 8 type considerations within the context of immigration law, examined the scope of the concepts of "precarious" rights and "insurmountable obstacles" and the relevance of "inadvertent errors" on the part of applicants as an Article 8 consideration. At [38]: "The Rules and the Guidance do leave open a discretion to the SSHD to permit exceptional circumstances to be taken into account. The case law makes clear that the concept of exceptional circumstances must be assessed from the perspective of proportionality and with Strasbourg jurisprudence in mind ... In short, the conventional Article 8 proportionality appraisal is one conducted within the framework of the Rules and the Guidance because they have been structured to isolate the relevant Article 8 factors and to enable officials applying the rules to take those considerations on board. In the present case no good arguable grounds have been advanced that there were factors particular to the Claimant that are not capable of being assessed from within the existing framework of rules and guidance and which therefore needed to be assessed outwith the Rules..."
To read the full judgment, click here.

Sabir (Appendix FM - EX.1 not free standing) [2014] UKUT 63 (IAC) (31 January 2014)
The First-tier judge had allowed the appellant's appeal on finding that she met the requirements of paragraph EX.1 of Appendix FM of the Immigration Rules in as much as there were insurmountable obstacles to her and her spouse relocating to Pakistan. The Secretary of State appealed inter alia on the ground that paragraph EX.1 was not free-standing but had to be read as a requirement of "R-LTRP" in Appendix FM. The Upper Tribunal judge held that it is plain from the architecture of the Rules that EX.1 is "parasitic" on a Rule within Appendix FM that otherwise grants leave to remain and that the First-tier judge had erred in law in finding that EX.1 was a free-standing paragraph to be considered irrespective of the other requirements of Appendix FM. The claimant could not meet the requirements of the Rules for leave to remain in respect to Article 8 and it was proportionate to expect her to return to Pakistan where she could make an application for entry clearance and the likelihood or otherwise of her being able to meet the requirements of the Rules for entry clearance was not a relevant consideration - see SB (Bangladesh) v SSHD [2007] EWCA Civ 28.
To read the full determination, click here.

SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 64 (IAC) (11 February 2014)
The Upper Tribunal (UT) considered the questions of (1) whether Rule 17 (withdrawal) of the Tribunal Procedure (Upper Tribunal) Rules 2008 requires the Secretary of State to obtain the UT's consent, before she may withdraw the 'immigration decision' against which a person appealed to the First-tier Tribunal (FTT); and (2) what is the effect on appellate proceedings in the UT of the withdrawal by the Secretary of State of that decision? Re (1): the UT concluded that rule 17 does not enable the UT to withhold consent to the Secretary of State withdrawing the 'immigration decision'. Re (2) however, where the 'immigration decision' is withdrawn in appellate proceedings before the UT, that Tribunal continues to have jurisdiction under the Tribunals, Courts and Enforcement Act 2007 to decide whether the determination of the FTT should be set aside for error of law and, if so, to re-make the decision in the appeal, notwithstanding the withdrawal of the appealed decision. The UT then gave further guidance on how it should proceed in practice in various scenarios where the underlying immigration decision is withdrawn by the Secretary of State.
To read the full determination, click here.

Immigration Law Training

Public Access Training
HJT, Tuesday 18 February, 09:30 to 18:30, London
CPD Hours: 12
HJT runs its course on public access for the Bar covering all aspects of the subject that the Bar Council and BSB require that practitioners are familiar with. For more information, click here.

LGBTI Asylum: How to succeed in a claim (and other matters)
ILPA, Tuesday 18 February 2014, 16:00 to 19:15, London
CPD Hours: 3
Chelvan shares his detailed knowledge of LGBTI asylum and human rights law, providing the tools needed to make successful claims.
For more information, click here.

Home Office policy, concessions and the exercise of discretion outside the rules
ILPA, Wednesday 19 February 2014, 16:00 to 19:15, London
CPD Hours: 3
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.
For more information, click here.

Unlawful immigration detention: the mentally ill and other protected groups
ILPA, Thursday 20 February 2014, 16:00 to 19:15, London
CPD Hours: 3
By the end of this session delegates should have a good grasp of the principles of unlawful detention and how to run a case in practice.
For more information, click here.

Immigration Cases in the Court of Appeal: the second appeals test and other hurdles
ILPA, Monday 24 February 2014, 16:00 to 19:15, London
CPD Hours: 3
This is a specialist course looking at all aspects of running immigration cases in the Court of Appeal. The course will cover both statutory appeals from the Upper Tribunal (IAC), and appeals in judicial review cases of all kinds from both the UT and the High Court.
For more information, click here.

Dublin III - A New era in Third Country Litigation
ILPA Thursday 27 February 2014, 16:00 to 19:15, London
CPD Hours: 3
Garden Court's Mark Symes and Greg O Ceallaigh, along with David Chirico, explain how domestic and European Union law works in these cases and by its end the practitioner will be able to advise clients on their liability to removal and any remedies against such government action.
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: £36.00. For full details, click here.

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