Issue 130 - 16th March 2009

Monday 16 March 2009

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News

The UK Border Agency has announced two further changes to the points based section of the Immigration Rules, to come into effect on the 31st March. The changes will introduce a new Tier 4 route for students as well as changing the academic and financial requirements of the Tier 1 (General) category for highly skilled workers. Other, minor amendments to the points-based system will be made at the same time. There will also be a change to the Tier 1 (General) category in order to, as the Home Secretary as put it, 'raise the bar' for those applying under this Rule.

The UK based charity British Irish Rights Watch, which has been monitoring the human rights dimension of the conflict in Northern Ireland, has been selected as the winner of the first ever Council of Europe Parliamentary Assembly (PACE) Human Rights Prize, The award has been established to honour "outstanding civil society action in the defence of human rights in Europe".

The Immigration minister Phil Woolas announced in an interview this week that it is the Government's intention to bring back exit checks on border controls. It is the intention that they be rolled out so that by 2014 exit checks would be in place at all UK border posts.

Cases

Two cases in the ECtHR. Firstly, in the case of Bykov v. Russia (application no. 4378/02), the Court held that there had been a violation of Articles 5 and 8. The applicant complained, in particular, about a covert recording used as evidence in the criminal proceedings against him and about the length of his pre-trial detention in Russia

In the case of Paladi v. Moldova, (application no. 39806/05), the Court held that there had been a violation of Articles 3 (prohibition of inhuman or degrading treatment) 5 (right to liberty and security) and 34 (right of individual petition). The applicant complained, in particular, that, despite doctors' recommendations, he was not given appropriate medical care while in detention pending trial

The Court of Appeal in TE (Eritrea) v Secretary of State for the Home Department [2009] EWCA Civ 174 considered the appropriate time for the Secretary of State to consider Immigration Rule 395C HC 395. The Secretary of State contended that until an appellant had exhausted their appeal rights they were not technically an overstayer and therefore she was no obliged consider their application under this Rule. The Court found that, though there may be circumstances where it may be appropriate not to consider the consequence of removal under Rule 395C, when refusing a variation an application. It was administratively convenient and inline with JM (Liberia) v Secretary of State for the Home Department (2006) EWCA Civ 1402, that as a rule of thumb, Rule 395C be considered at the same, if the Secretary of State is to refuse an application under another Immigration Rule.

In HJ (Iran) v Secretary of State for the Home Department [2009] EWCA Civ 172 the Court of Appeal found that the test in J v Secretary of State for the Home Department (2006) EWCA Civ 1238, of whether discretion was something that the appellant could reasonably be expected to tolerate, complied with the standard required by the Refugee Convention. In assessing whether it was tolerable to for an appellant to act discreetly, a consideration of the social norms and religious beliefs in the state of origin was appropriate.

In the Admin. Court case of De Oliveira, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 347 it was held that the Secretary of State had been wrong to hold that a computing study course embarked on by an overseas student did not satisfy the Immigration Rules for the purposes of obtaining an extension of stay as a student.

Legislation

On the 31st March the Immigration and Asylum Act 1999 (Part V Exemption: Licensed Sponsors Tiers 2 and 4) Order 2009 SI 2009/506 will come into force. The Order exempts licensed sponsors of Tier 2 and Tier 4 migrants under the points-based system from the prohibition imposed under section 84(1) of the 1999.

 

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