Issue 121 - 12th January 2009

Monday 12 January 2009

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News

The UKBA have announced a new policy to take effect from 30 January 2009 so as not to automatically suspend removal in cases where immigrants lodge a second judicial review challenge to removal within three months of being refused permission, or withdrawing, a previous judicial review challenge to removal. Read more

The UKBA has introduced its code of practice for keeping children safe from harm - the Agency states that the Code is the first stage in bringing the UKBA into line with other Government organisations entrusted with the care of children and that staff must adhere to the new code of practice which lays down how youngsters should be treated during any stay in detention or while being transferred into local authority care. Read more

The UKBA announced that as of 5 January 2009, 4,875 businesses have registered as sponsors in relation to the "tough new Australian-style points system".

Westminster council has reportedly taken advantage of a government pilot scheme and has spent £100,000 in providing food, clothing and one-way bus or air tickets to thousands of people, mainly Polish, who have no access to benefits in the UK. Read more

According to the Daily Mail, Communities Secretary Hazel Blears has reportedly 'admitted' that Labour allowed a 'free-for-all' on immigration during its first years in power and Immigration Minister Phil Woolas has reportedly asserted that 'a significant number of people who claim asylum are doing so for broadly economic reasons.' Read more

Cases

In MK (Somalia) v ECO [2008] EWCA Civ 1453, the CA upheld the AIT's determination that there is no free-standing policy operating outside the Immigration Rules which accrues to the particular advantage of de facto adoptive children who fall outside paragraph 309A of the Rules. The Art. 8 aspect of the appeal however was remitted for further reconsideration. see

In R (Abdi and others) v SSHD [2008] EWHC 3166 (Admin), Davis J held that the SSHD's presumptive detention policy, as introduced from April 2006 and as applied to foreign national prisoners whom she has decided to deport was unlawful as being contrary to law and the provisions of para. 2 of Sch. 3 to the 1971 Act; such policy was also unlawful as being insufficiently published or accessible prior to its publication in the Enforcement Instructions and Guidance issued on 9 September 2008; and in any event the policy as published on 9 September 2008 remained unlawful, as being contrary to the provisions of para. 2 of Sch. 3 to the 1971 Act. see

In R (Tesfamichael) v SSHD [2008] EWHC 3162 (Admin) the Deputy High Court judge held that the AIT's conclusion that T was a refugee - in relation to her country of nationality, Eritrea - was binding on the SSHD and so prevented her removal to Ethiopia on Art. 32(1), Refugee Convention grounds. The SSHD was directed to implement the AIT's decision and grant T leave to remain as a refugee.

In SSHD v AR [2008] EWHC 3164 (Admin), Mitting J held that a court considering whether a decision of the SSHD to make a control order was flawed was not bound to accept the findings of the Special Immigration Appeals Commission in deportation proceedings but should check its own findings against those made by the Commission.

In AJ (Risk to Homosexuals) Afghanistan CG [2009] UKAIT 00001, the AIT has held that in general homosexuals are not at risk of persecution in Afghanistan and that relocation to Kabul is generally a viable option for homosexuals who have experienced problems elsewhere, though individual factors will have to be taken into account. The actual appellant however, having incurred the adverse attentions of the Taliban, who had killed his family when he fled the country in 2001, was at real risk of being persecuted even if returned to Kabul.

In AM (s 88(2): restriction on grounds) Ghana [2009] UKAIT 00002, the AIT held that 2002 Act, s. 88(2)(d) (person seeking to enter or remain for purpose other than one for which entry or remaining is permitted by immigration rules) restricts the grounds of appeal to those mentioned in s 88(4) (asylum, human rights, race discrimination grounds) if and only if the reason cited in the immigration decision has some relationship to the application. SSHD again criticized for not applying / misapplying her own policies.

In YT (HC 395 paragraph 44 - extension of stay) Belarus [2009] UKAIT 00003, the AIT held that, prior to its amendment by HC 1113 with effect from 27 November 2008, para. 44 of the immigration rules (requirements for an extension of stay as a visitor) was not limited in its application to persons in the UK on visitors visas. see

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