Issue 131 - 23rd March 2009

Monday 23 March 2009

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News

The UKBA is proposing changes in the rules for 'marriage visas' (also covers civil partners etc) - in particular: by requiring those seeking such entry clearance to enter into an agreement to learn English as part of the visa application process and, once they have arrived in the UK, to show that they have fulfilled this commitment; to set a medium-term goal of introducing a pre-entry English test for such applicants; and to introduce a requirement for British citizens and permanent residents who are seeking to sponsor a spouse to come to the UK to first declare their intention before leaving the UK and marrying abroad.

The UKBA has announced changes in the immigration rules, to come into effect on 31 March 2009, raising the academic and financial requirements for Tier 1 (General) and Tier 1 (Post-Study Work) categories for applications made on or after 31 March 2009. Furthermore, from 31 March 2009, an employer wishing to sponsor a migrant to do a job under Tier 2 (General) will not pass the 'resident labour market test' unless the job has been advertised to settled workers in Jobcentre plus and advertised using one other method permitted by the relevant code of practice.

The UKBA has also announced that from 31 March 2009 the current arrangement, under which settlement applications that meet all the relevant requirements except Knowledge of Life in the UK (KOL) are automatically considered for a grant of limited leave in the same category (with a refund of the difference in the fee), will be coming to an end. Settlement applications submitted on or after this date in categories requiring KOL that do not meet this requirement will be refused outright without a fee refund. More info

The immigration minister, Phil Woolas, has been 'publicly humiliated' by French denials about a new detention centre - supposedly to be run jointly by UK and French officials in France - that he had already announced.

Communities Secretary Hazel Blears has announced a plan for a £50 surcharge on non-EU immigrants entering the UK for work or study, with the prospected £70 million thereby raised going towards police support and translation services.

 

Cases

In Al-Sirri v SSHD [2009] EWCA Civ 222 the CA held, in a case where the AIT had upheld the SSHD's determination to exclude the appellant under Art. 1F(c) of the Refugee Convention, that: although the ECHR Art 6(2) was not applicable there is nonetheless a 'presumption of innocence' in that it is for the SSHD to produce evidence capable of amounting to serious reasons for considering that an applicant comes within Art 1F; although terrorism is clearly contrary to the principles and purposes of the UN (and thus falls within Art. 1F(c)) the adoption by the IANA 2006, s.54(2) of the wide meaning of terrorism contained in the Terrorism Act 2000, s. 1, has where necessary to be read down in an Art. 1F case so as to keep its meaning within the scope of art 12(2)(c) of the Qualification Directive; "serious reasons for considering" in Art.1F did not import a criminal standard of proof nor did the word "guilty" in the Art. mean anything more than 'responsible for'; a private individual could be guilty of acts contrary to the principles and purposes of the UN; the AIT had seriously erred in law by giving any weight at all to in absentia convictions secured against the appellant in Egypt given its own finding that evidence had probably been obtained by torture; the AIT had also erred in law by giving any weight to a US indictment upon which the appellant's extradition had been refused by the UK authorities for want of any evidence from the US authorities in its support.

In R (AM and others) v SSHD & Kalyx Ltd [2009] EWCA Civ 219 the CA held that the appellants were entitled to a declaration that the SSHD ought to have instituted an independent investigation when he was alerted by them, in 2007, to the possibility that there might have been violations of their ECHR Art. 3 rights consequent to disturbances at Harmondsworth Immigration Detention Centre in late November 2006.

In R (Ramalingum) v SSHD [2009] EWHC 453 (Admin), Burnett J held that the claimant had not been unlawfully discriminated against by the SSHD's refusal to register her as a British citizen under the BNA 1981, s. 3(1) in the exercise of her discretion and on the basis that "normally, minors will not be registered if, as appears in this case, neither parent is a British Citizen."

In SI (mixed Serb/Roma parentage) Kosovo CG [2009] UKAIT 00011, the Tribunal held that although there is clear evidence of discrimination against minorities and in particular Roma in Kosovo, the evidence does not demonstrate a real risk or persecution or Art. 3 violation to a member of a minority group; there is a sufficiency of protection in Kosovo for minorities - including those who have mixed Roma/ Serb parentage - in terms of the Refugee Qualification Regulations 2006, reg. 4(2).

In MD (Judge's knowledge; standard of English) Pakistan [2009] UKAIT 00013 the Tribunal held that an IJ who believes that, in dealing with other cases, he has developed a specialised familiarity with a particular sort of evidence, that causes him to reach an adverse view of the genuineness of evidence produced to him, ought not to act on that view without giving the parties an opportunity to deal with the point. see

In WW (EEA Regs. - civil partnership) Thailand [2009] UKAIT 00014 the Tribunal held that in reg. 10 of the EEA Regulations 2006, 'termination' of a civil partnership means formal, not de facto, termination. The length of a civil partnership for the purposes of reg. 10 is determined by reference to the period during which that partnership has formally existed and thus excludes any period during which the parties were in a relationship prior to the formation of the civil partnership under the 2004 Act.

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