Issue 128 - 2nd March 2009

Monday 2 March 2009

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News

New fees for immigration and nationality applications were announced from 6 April 2009: eg £720 for naturalisation.

Cases

In GS (Existence of internal armed conflict) Afghanistan CG [2009] UKAIT 00010 (24 February 2009) the Secretary of State conceded that Afghanistan is in a state of internal armed conflict.

In Elgafaji v Staatssecretaris van Justice (Case C-465/07,17 February 2009) the ECJ, under a reference for a preliminary ruling under Articles 68 EC and 234 EC from the Raad van State (Netherlands), found that the protection of Article 15(c) of the Qualification Directive runs where the violence is so great that all civilians in that area are at risk. "[T]he existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances." This will be a high test: ie only where the violence "reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."

In S & Ors v Secretary of State for the Home Department [2009] EWCA Civ 142 (25 February 2009) the Court of Appeal found that it was not conspicuously unfair for the Secretary of State not to be held to the policy of granting exceptional leave to remain to nationals of countries formerly benefiting from blanket ELR policies. Where the Secretary of State has sufficiently had regard to past illegality in decision making and any injustice, she will be entitled in the exercise of her discretion to refuse ILR. The court will only intervene in the extreme case, where fairness dictates that no reasonable Secretary of State could have done other than grant ILR. The court will not intervene unless proceedings have been brought promptly following a decision by the Secretary of State not to grant asylum, for in such circumstances it will be very difficult indeed to show conspicuous unfairness, though deliberate bad faith by the Secretary of State was another matter.

Sedley LJ in the Court of Appeal in AM (Somalia), R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 114 (25 February 2009) considered that it would take a great deal to persuade the Court that Parliament had silently sanctioned something so time-wasting and unfair as permitting the certification of a pending appeal where a certificate had already been struck down. On judicial review the courts can be expected to give close scrutiny to a decision to certify a claim and, if the claim appears to them viable, to be prepared to overset the Home Secretary's view that it is not. The imperative of effective immigration control has little bearing on a Dublin return, given that the asylum claim's merits have not yet been determined, so an immigration judge might find that the lawful purpose of the Dublin Regulation was not sufficient to justify the damaging effect on an appellant of disrupting their private and family life by compelling him to present an asylum claim abroad rather than in the UK.

In Haq (R on the application of) v Secretary of State for the Home Department [2009] EWHC 357 (Admin) (23 January 2009) David Elvin QC sitting as a Deputy Judge of the High Court found that there was no doctrine of substantial compliance such as to save a defective application that did not meet the requirements of The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2007, where an applicant failed to comply with the requirements within 28 days of notification by the Secretary of State of a failure to do so. It was not possible to rule that the Secretary of State acted unreasonably in not exercising the residual discretion in favour of a claimant who had been given a second chance and failed to take it in reasonable time. He opined that the main purpose of the amendment to section 10 of the 1999 Act was not to shift the emphasis from a past deception to a current deception, but rather to catch someone who deceives whether or not his deception led to his obtaining leave.

In JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 (19 February 2009) Richards LJ in the Court of Appeal found, regarding the validity of an application, that given that the 2003 Regulations provide in regulation 12 that a failure to comply with the requirement to provide specified documents will only invalidate an application if the Secretary of State notifies the applicant of the failure and certain other conditions are met, a failure to give that notification will prevent reliance on the failure by the Secretary of State. Overruling DA Ghana, as a matter of language, there is no reason why a later application should not also be treated as a "variation" of the first application even if it is for a different purpose.

McCombe J in the Administrative Court in Bessuroglu (R on the application of) v Secretary of State for the Home Department [2009] EWHC 327 (Admin) (12 February 2009) ruled that the standard practice of the Secretary of State, irrespective of the circumstances of individuals, to renew any Turkish worker's permission to remain for a period of no more than 12 months, was a set, prescribed policy from which no departures are permitted which is a quite unreasonable fettering of the Secretary of State's discretion.

Plender J in the Administrative Court in Pouka (R on the application of) v Secretary of State for the Home Department [2009] EWHC 273 (Admin) (11 February 2009) usefully summarised the effect of Chikwamba as requiring that account be taken of all the circumstances of a couple: including the immigration history of the person who does not have a right to remain, the distance from the United Kingdom and conditions in any country to which the person subject to removal is to be returned, the impact of return upon any children of the marriage, and the cost and inconvenience for the couple of their going abroad.

Events

HJT Training Ltd is hosting an afternoon seminar on the new system of employer and educational sponsorship highlighting the penalties that can be imposed by the Home Office for non-compliance, on Friday March 27 from 13:00 to 17:00, 3 CPD hours, at the International Dispute Resolution Centre, 70 Fleet Street, London, EC4Y 1EU; £150.00 plus vat per delegate.
Natasha Gya-Williams, Atkins Law Solicitors, and Alison Harvey, ILPA, on Friday 6 March 2009, at a venue to be confirmed in Bristol, from 4.00-7.15pm, are giving a course titled "Current challenges for UK Immigration Lawyers".

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