Issue 119 - 15th December 2008

Monday 15 December 2008

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Surprisingly, a few weeks after lifting the immigration exemption regarding the Child Convention, the Border Agency is withdrawing DP5/96 ("the seven year child concession") as of 9 December 2008. The concession set out the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of a child who was born here and has lived continuously to the age of seven or over, or where, having come to the UK at an early age, they have accumulated seven years or more continuous residence. The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by case workers.

The Immigration and Nationality (Fees) (Amendment No. 3) Regulations 2008 specify the fees for an application for leave to remain as a Tier 1 (Post Study Work) migrant, Tier 1 (General) migrant and a Tier 1 (Entrepreneur) migrant in respect of persons who are nationals of states that has ratified the Council of Europe Social Charter ("CESC national"), entry clearance as a Tier 2 migrant under the immigration rules in respect of a person who is a CESC national and for sponsorship licences. more info


In Zhang, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 3050 (Admin) (10 December 2008) Belinda Bucknell QC found there was no objection to the Secretary of State citing an unreported Tribunal case in a refusal letter. However, here the decision maker had overlooked the Court of Appeal decision in Liu v. Secretary of State for the Home Department [2005] EWCA Civ. 249 which established the possibility that those fearing the Chinese state on account of their breach of the one-child policy might be members of a particular social group.

In Veerasingam v Secretary of State for the Home Department [2008] EWHC 3044 (Admin) (11 December 2008) Blake J found that in the absence of cogent evidence clearly establishing the contrary it was difficult to accept that a detention was unlikely to be recorded at the time. The Sri Lankan security forces have been engaged in a long struggle against terrorist insurgency in their country and there is no reason to believe that they would have completely failed to adopt what any similar security force would be likely to do in such circumstances which is to gather information and record it for future use in making assessments of those who may be members or supporters. The tribunal in AN Sri Lanka did not have the benefit of the Strasbourg court's assessment of risk in NA v United Kingdom, which whilst it did not necessarily undermine AN, remained a factor to take into account.

Blake J in the Adminstrative Court in Tekle v Secretary of State for the Home Department [2008] EWHC 3064 (Admin) (11 December 2008) found that the present policy of refusing permission to work to asylum seekers whose fresh claims are pending consideration is unlawfully overbroad and unjustifiably detrimental to claimants who have had to wait a long time for decisions. The ability to take employment is an aspect of private life. The right to work generally is a human right set forth in the Universal Declaration of Human Rights 1948 and the European Social Charter. The positive prohibition on being able to take employment, self employment or establishing a business, when placed alongside the inability to have recourse to cash benefits, restricts the ability to form relations either in the work place and outside it. When such a requirement is imposed on someone who cannot be removed from the United Kingdom and it is maintained against someone who has been physically resident in the United Kingdom since the fresh claim was made 4 ½ years ago this restriction can thus be said to be an interference with right to respect for private life. There was no justification put forward that would justify the prohibition regarding an asylum seeker who had waited for more than four years for a decision.

In YS and YY (Paragraph 352D, British national sponsor former refugee) Ethiopia [2008] UKAIT 00093 (04 December 2008) the Tribunal considered a case where the refugee sponsor had come to the UK in 1993, been granted asylum, then settlement in 1998 and later granted British citizenship. Subsequently she sponsored her minor children to come to the UK. The Tribunal held in that appeal that the wording of paragraph 352D was to be given its ordinary meaning and that the words "has been granted asylum" were to be construed as a status that had been granted that remained unchanged by the subsequent acquisition by the sponsor of British citizenship. Cessation of refugee status required a positive step by the Secretary of State.


On Tuesday 27 January 09 ILPA have a course, Challenging Immigration Detention, an update, central London, from 4-7.15pm; the speakers are Graham Denholm, 1 Pump Court, and James Elliot, Wilson and Co Solicitors (3 CPD hours).
On the morning of 15 January 2009 JCWI will be running a course, "Permanent residence and settlement in the UK", in London.





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