Issue 106 - 15th September 2008

Monday 15 September 2008

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News

On 11 September 2008 new versions of the guidance notes for Tier 1 (General), Tier 1 (Entrepreneur) and Tier 1 (Post-study Work) applications were released.

A number of organisations and tests have been withdrawn from the list of approved English language test providers for tier 1 of the points-based system. More info.

On 13 August 2008 the Home Office announced a new policy in which they gracefully accept the interpretation of the House of Lords in Chikwamba, which they express thus, in more generous terms than is being argued for by Presenting Officers: "it is only comparatively rarely that it will be lawful to require someone with family here to return home and apply for entry clearance, particularly where children are involved ... Returning an applicant to his/her home country in order to make an entry clearance application may still be proportionate in a small number of cases." More info.

Cases

In LM (risks on return) Republic of Congo (Congo-Brazzaville) CG [2008] UKAIT 00064 (01 September 2008) the Tribunal found that there have been improvements in the human rights position in the Republic of Congo since the last Country Guidance determination was promulgated. The conclusion of the Tribunal in BB that past or present membership of an opposition party including the MCDDI would not lead without more to a real risk of persecution on return to Brazzaville remained valid. There continues to be a danger for some political opponents of the current regime. The test of whether there is a real risk continues to depend upon the individual's background and profile including in particular the extent of his political involvement and whether he has or is likely to come to the attention of the authorities.

In JM (homosexuality: risk) Uganda CG [2008] UKIAT 00065 (11 June 2008) the Tribunal found that although there is legislation in Uganda which criminalises homosexual behaviour there is little, if any, objective evidence that such is in fact enforced. Notwithstanding a prevailing traditional and cultural disapproval of homosexuality, the evidence does not establish that in general there is persecution of homosexuality in Uganda.

In FS (Breach of conditions: Ankara agreement) Turkey [2008] UKAIT 00066 the Tribunal found that the Ankara Agreement does not entitle Turkish nationals to breach conditions of their leave. A Turkish national is not therefore entitled to base a claimed entitlement to remain in the United Kingdom on working in breach of conditions of their leave to enter.

In RU (Immigration Judge: treatment of evidence) Nigeria [2008] UKAIT 00067 the Tribunal found that an Immigration Judge must decide an appeal solely on the evidence and should not make findings of fact where credibility is contested where they are contrary to the evidence or the common experience of humanity.

In H, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2174 (Admin) (12 September 2008) Cranston J in the Administrative Court found that rule 353 of the Immigration Rules applies to a claimant whose claim for asylum was unsuccessful and who then left and returned to the UK.

Another challenge to a third country removal to Greece was refused in N (R on the appliaction of) v Secretary of State for the Home Department (18 June 2008) [2008] EWHC 2161 (Admin), the Court considering that if Article 6 could be relied upon, it was necessary to show a flagrant breach of fair trial procedures in Greece.

In AK (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 941 (8 July 2008) the Court of Appeal considered whether a failure to adjourn in the face of an Appellant on refugee grounds suffering a last-minute withdrawal of their lawyers showed a degree of unfairness sufficient to vitiate the eventual determination. On the facts of the case Sedley LJ found that it did, adding that what fairness requires is in principle a matter of law once the facts are established, and that a reviewing court is not confined to the bare rationality of the decision.

Mckeown CJ in the US Court of Appeals in Cosa v Mukasey (No 04-75643) (9th Cir, 15 September 2008) overturned an American Immigration Judge for failing to take into account that history and common sense make amply clear that people can identify with a certain religion, notwithstanding their lack of detailed knowledge about that religion's doctrinal tenets, and that those same people can be persecuted for their religious affiliation.

Events

Adrian Berry presents a course for JCWI: Nationality law - new developments and practical guidance on Tuesday 23 September 2008, in London

An era ends as Fran Webber presents her last immigration training course before retirement for ILPA on Tuesday 23 September 2008, London, 4.00-71.5pm

HJT Training are running a Deportation Appeals Course (Grace Brown) on Thursday 18 September from 16:00 to 19:00,

Glasgow Immigration Practitioners' Group is co-hosting along with the Scottish Refugee Council and the Murray Stable a conference on statutory review on Monday 24th November. The conference will be held at the Royal Faculty of Procurators in Glasgow City Centre. The keynote speaker will be Lord Reed, one of the Court of Session judges and a specialist in human rights law.

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