Issue 111 - 20th October 2008

Monday 20 October 2008

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News

On 16 October 2008 the Home Office announced "Tough new rules to safeguard the visitor route into the United Kingdom from abuse and keep Britain an attractive place to do business". Visa nationals wishing to come to the UK on business for up to six months must apply for a dedicated new business visa (entry clearance) and prove they will be carrying out qualifying activities such as attending meetings or conferences; arranging deals, negotiating or signing trade agreement or contracts; undertaking fact-finding missions, checking details or goods; and conducting site visits and promotional activities (however, there are no immigration rules to this effect yet on the Home Office website). More info

The Tribunal excelled itself by promulgating a determination that was defamatory of the expert witness Alan George: "During the period 24 September 2008 to 10 October 2008 we carried a case report which was cited as SD (expert evidence) Lebanon [2008] UKAIT 00070 in which criticisms were made of Dr Alan George. Due to an administrative error the report which was published was a draft rather than the AIT's final determination (which differed from the draft in material respects). The error has now been corrected and the final determination has been substituted for the draft. We sincerely apologise to Dr George for our error." More info

On 8 October 2008 the General Assembly of the United Nations adopted resolution A/RES/63/3 in which, referring to Article 65 of the Statute of the Court, it requested the International Court of Justice to "render an advisory opinion on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? More info

Cases

In NA (risk categories, Hema) Democratic Republic of Congo CG [2008] UKAIT 00071 (29 September 2008) the Tribunal found that in the light of the current situation in Ituri and the history of conflict between the Hema and the Lendu, even though the situation is being brought under some control, a member of the Hema tribe may be potentially at risk of serious harm on return to the Ituri region. Given the evidence regarding hostility to Tutsis, with whom the Hema would be associated, there was no prospect of internal relocation.

In AW (Duties of Immigration Judge) Pakistan [2008] UKAIT 00072 (06 August 2008) the Tribunal found that the decision maker's knowledge of local conditions is entitled to respect, but the point of an appeal is that the judge comes to the evidence afresh. A decision to take into account, against the respondent, evidence which to knowledge of the IJJ the appellant had sent directly to the Tribunal without involving the respondent, is a clear error of law, both under the Procedure Rules and as a matter of natural justice

In AO (internet evidence; disputed documents) Nigeria [2008] UKAIT 00073 (23 September 2008) the Tribunal found that where the Entry Clearance Officer has failed to provide to the Tribunal the documents he was by law obliged to provide, it may be right to allow a certain amount of breadth to the appellant in producing the evidence he needs in order to discharge the burden of proof.

In OP (EEA; permanent right of residence) Colombia [2008] UKAIT 00074 (23 September 2008) the Tribunal held that the EEA Regulations are intended to recognise the "permanent right of residence" of individuals who 'clock up' the relevant five years continuous residence on or after the date they came into effect

In SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075 (30 September 2008), the Tribunal considered the phrase "in the country from which they have come" in Article 3(2)(a) of the Citizens Directive, holding that it is to be interpreted in such a way as to limit the Directive's application to those who have come from other member states.

In Erdogan (R on the application of) v Secretary of State for the Home Department [2008] EWHC 2446 (Admin) (22 September 2008), the Administrative Court held that having regard to the fact that no point on exclusion from Humanitarian Protection was taken by the Secretary of State during the Claimant's appeal, and no application was made by the Secretary of State to seek reconsideration, it was now unlawful for the Secretary of State to seek to rely upon that conviction to exclude an individual from Humanitarian Protection.

In Umar, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2385 (Admin) (10 October 2008) the High Court found that internal relocation and state protection were available to a Nigerian victim of domestic violence from a relative (the Claimant was not a spouse).

In Glushkov v Secretary of State for the Home Department & Ors [2008] EWHC 2290 (Admin) (9 September 2008) the Administrative Court found that the Secretary of State must not use the withdrawal power as a tactical exercise to avoid having to apply for an adjournment. It would be wrong and unfair to withdraw a decision without holding the view that on reconsideration a view favourable to the Appellant was a possibility.

In Forrester (R on the application of) v Secretary of State for the Home Department [2008] EWHC 2307 (Admin) (5 September 2008) Sullivan J in the Administrative Court applied Chikwamba, concluding that it is one thing to say that one should have a fair and firm immigration policy, it is quite another to say that one should have an immigration policy which is utterly inflexible and rigid and pays not the slightest regard to the particular circumstances of the individual case.

Events

ILPA present a course on HC 321, the General Grounds for Refusal, on 29 October 2008, London, 4.00-7.15pm
www.ilpa.org.uk

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