Issue 123 - 26 January 2009

Monday 26 January 2009

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The UK Border Agency has announced changes to the treatment of applications for private servants in diplomatic households following a commitment by Ministers that settlement provisions would be retained for those entering the United Kingdom (UK) under tier 5 of the points-based system. more info

Cases

In CL (Vietnam) v Secretary of State for the Home Department (10 December 2008) [2008] EWCA Civ 1551 the Court of Appeal found that the Immigration Judge, by refusing to rule on reception arrangements for a child in their country of origin, would in effect be delegating to the Secretary of State the decision on this part of the Article 8 appeal, a very important part of it in the case of an unaccompanied child, and denying the appellant his or her statutory entitlement to a full appeal process. It was not appropriate to rely on a bland statement in a British Embassy letter which was plainly a recital of a formal answer obtained from the authorities abroad when deciding something as important as the safe return of a child to another country.

In TR (Sri Lanka) (R on the application of) v Secretary of State for the Home Department [2008] EWCA Civ 1549 (16 December 2008) Sedley and Keene LJJ referred to the intensity of the court's review in fresh claim cases. The Secretary of State's margin of appreciation was slenderer than in other judicial review contexts, given that the Home Secretary acted as judge in her own cause in reaching the decision under attack; because the matters ordinarily relevant to whether a claim is a fresh claim are matters which a court is for the most part at least is as well equipped as the Home Secretary to deal with; and these are potentially matters of life and death.
In Veerasingam v SSHD [2008] EWHC 3044 (Admin) (11 December 2008) Blake J noted that the real risk standard that is at the heart of both refugee and ECHR case law, although the requirement of substantial grounds for a real risk might if anything be a more demanding test than that required to make out a well-founded fear of persecution.

In PB, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 3189 (Admin) (04 December 2008) Kenneth Parker QC sitting as a Deputy High Court judge assessed damages in the Beecroft case, ruling that the quantification of damages for a period of unlawful detention that, following a short period of lawful custody, extended to about six months, was £32,000. Aggravated damages of £6,000 were appropriate where the detention was unlawful because the defendant failed to apply Detention Centre rules and operating policies in favour of victims of torture, where the defendant maintained an unjustified defence to the claim up to the eve of the hearing of the application, in circumstances where the true situation should, with reasonable diligence, have been discovered well before that date.

In the Administrative Court (Pearl J returning to the world of immigration) in Low (R on the application of) v Secretary of State for the Home Department [2009] EWHC 35 (Admin) (21 January 2009) it was found that third country nationals employed by a company established in an EU member state could not benefit from free movement provisions unless lawfully employed in another member state, and are required as a requirement of being employed by such a company to reside in another member state. Community law cannot be relied on for abusive or fraudulent ends such as the improper circumvention of a member state's rules by the exploitation of fundamental freedoms.

In FS (Treatment of Expert evidence) Somalia [2009] UKAIT 00004 (12 January 2009) the Tribunal found that a fact-finding Tribunal may give weight to an expert report unfavourable to an appellant and yet believe their account. Whereas no judicial fact-finder can reject an expert report in a peremptory and dismissive manner, cogent reasoning will permit an Immigration Judge to gave an explanation for preferring the appellant's evidence over the expert evidence where it was subjected to close analysis.

In OY (Chechen Muslim women) Russia CG [2009] UKAIT 00005 (22 December 2008) the Tribunal found that a female Chechen failed asylum seeker returning to Russia would be the subject of travel document enquiries which would in turn reveal where the individual was last registered, leading to the authorities at the airport being put on notice that the individual was likely to be a returning failed asylum seeker. Factors which might contribute to the conclusion that the individual was of Chechen ethnicity would be her name, mode of dress if it indicated that she was likely to be of the Muslim faith and accent. A Chechen woman returning in these circumstances was likely to face a real risk of serious ill-treatment amounting to persecution and infringement of her Article 3 human rights during questioning whether or not the enquiries which the authorities are bound to make of the police in her home area or area of last registration indicate that anything is recorded against her, for a combination of her race, religion and perceived political opinions. If such an individual is able to pass through the airport they would be detected, lacking a propiska, in due course; they would be unable to live in Chechnya with a husband or partner of Russian ethnicity because he would be at constant risk from the authorities and local population. It would be unduly harsh to expect a Chechen woman who lacked an internal passport to attempt to relocate. Robert Chechiner's evidence was given substantial weight.

In Joseph Grant v The United Kingdom (Application no. 10606/07; 8 January 2009) the European Court of Human Rights noted that Article 8 protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, so that it was accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of "private life" within the meaning of Article 8. Regarding a serial offender, they noted that although his criminal record included offences of dishonesty, violence, possession of a weapon in a public place, and the possession and supply of drugs, none of the individual offences committed by him were at the more serious end of the spectrum of criminal activity. However the sheer number of offences of which the applicant has been convicted, or the time span during which the offences occurred, could not be ignored, so his removal from the UK was proportionate.

 

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