Issue 122 - 19th January 2009

Monday 19 January 2009

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News

(19 January 2009) The Thai military has taken into custody another group of asylum-seekers from Burma's Rohingya minority. It comes amid accusations - denied by the military - that units set hundreds of refugees adrift at sea last month. A boat carrying 46 Rohingyas was intercepted this morning off an island in southern Thailand. Survivors who drifted to Indonesia and the Andaman Islands accuse the Thai military of towing them out to sea in boats with no engines and no food. The commander of the military units responsible for dealing with asylum-seekers has denied the accusations.

(14 January 2009) An official investigation has been launched after two immigration service staff working with asylum-seekers were found to have links to the British National Party. One guard employed to look after asylum-seekers at a detention centre has been forced to resign after his name was found on a membership list of the BNP. Another man has been suspended while his employer investigates alleged links to the same far-right organisation.

(12 January 2009) Gordon Brown's drive to create new jobs for British workers and get the unemployed back in work risks being undermined by his immigration policies, an influential coalition of MPs, peers, churchmen and business experts warn.

 

Cases

In VW (Uganda) & AB (Somalia) v SSHD [2009] EWCA Civ 5, the CA held, in an important decision about the approach to article 8, that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts.

In MA (Somalia) v SSHD [2009] EWCA Civ 4, the CA held that notices of decision to remove do not contain, expressly or inherently, removal directions. A notice of decision to remove is an immigration decision giving a right of appeal under section 84(1)(g) NIAA 2002. References to removal directions towards the end of such notices were only an indication of a "proposed" country of removal. However, in cases where there is a dispute about origins or nationality which might affect not only the merits of the applicant's case but also the question of which country any return would be to, there was nothing in the jurisprudence to suggest that a contingent proposal could not be stated in the notice of decision to remove. The CA held that "where the Secretary of State proposes a destination in which she does not believe (because it represents the applicant's and not the Department's case), it would be better to state the matter contingently, as in MY Somalia*/Yusuf. That would also be more transparent..... such a notice would be consistent with the Regulations." Finally, the CA held that the mandatory language of section 86(3) NIAA 2002 did not require the Tribunal to render an academic decision on a matter which has become moot, namely removal to a proposed destination which is found not be where the applicant claims to originate from and where the SSHD does not propose remove to anyway. In such circumstances, the CA held that it must be right to uphold the decision to remove and leave for the future any new question of removal to a different destination for the time when it occurs and in the light of circumstances then prevailing.

In ZH (Bangladesh) v SSHD [2009] EWCA Civ 8, the CA held that the public interest in an unlawful stay which had lasted 14 years or more was treated by the Immigration Rules r.276B as met by a grant of indefinite leave to remain provided that there were no countervailing factors which tilted the public interest balance the other way. The use of a false identity might be a relevant factor in gauging where the public interest lay, but nothing in the rule accorded it any given weight, much less made it decisive.

Events

Introduction to Immigration Law - Getting Started, the first step to accreditation
Tuesday 20 January 2009, London, venue tbc, 1.30 - 6.30pm.
Speakers: Philippa Roffey and Annette Elder, Elder Rahimi Solicitors
4.5 CPD hours
Fee: ILPA Members £180, CR*£90, others £360

Tier 5 Points Based System: Temporary Workers and Youth Mobility Scheme
Wednesday 21 January 2009, London, venue tbc, 4 - 7.15pm
Speakers: Gillian Brownlee, Kingsley Napley, Andrew Tingley,Kingsley Napley
3 CPD hours
Fee: ILPA Members £180, CR*£120, others £360

Tier 2, how to bring skilled workers into the UK (DT 1120)
Friday 6 February 2009, Manchester, 2-5.15pm
Speakers: Shazia Khan, Kenworthy's Chambers, Rosayln Chowdhury, Chance Hunter Solicitors
3 CPD hours
ILPA members £180, CR*£120, others £360

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