Issue 132 - 30th March 2009

Monday 30 March 2009

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The UKBA has brought into force the Tier 4 (General) student programme for student applying on or after 31 March 2009. The new immigration rules can be found at paragraphs 245ZT - 245ZZD. New applicants must apply using the new Tier 4 (General) application forms and with reference to the new guidance.

More than 400 colleges and schools have been refused licences to take overseas students under the Tier 4 programme. The UKBA has turned down around 460 of more than 2,100 organisations under the new Tier 4 programme.

From 31 March 2009, the UKBA will expand the identity cards scheme to several categories of immigration applicants from outside the European Economic Area (EEA). From this date migrants granted an extension in the following categories will also get an identity card:

  • - academic visitors granted leave for more than six months;
  • - visitors for private medical treatment;
  • - domestic workers in a private household;
  • - United Kingdom ancestry;
  • - retired persons of independent means;
  • - sole representatives;
  • - dependants where applicable and when applying at the same time; and those applying for a transfer of conditions

More than 200 African migrants are feared dead after their boat sank off the coast of Libya.

Failed asylum seekers cannot receive free treatment on the NHS, three judges have ruled at the Court of Appeal, however the Court held that hospitals can decide themselves whether to treat such individuals if they have no money. See cases section below for details.

The UNHCR has reported that the number of people seeking asylum in industrialised countries has grown for a second consecutive year. Some 383,000 people applied for refuge in Europe, North America and other developed regions in 2008 - 12% more than in 2007, the UNHCR said. Most applicants were Iraqi, but the steepest rise in applications was from Afghanistan, with an increase of 85%.


In R (on the application of YA) v Secretary of State for Health [2009] EWCA Civ 225, the Court of Appeal held that the purpose of the National Health Service Act 2006 was to provide a service for the people of England and that did not include those who ought not to be in England such as failed asylum seekers. Guidance given by the Secretary of State for Health on the implementation of the National Health Service (Charges to Overseas Visitors) Regulations 1989, advising NHS trusts to charge failed asylum seekers for NHS services, was unlawful in so far as it failed to make clear how the discretion to withhold or allow treatment in certain circumstances, particularly where the treatment was urgent and the failed asylum seeker was unable to pay for the treatment, should be exercised.

InMH (Syria) v Secretary of State for the Home Department [2009] EWCA Civ 226, the Court of Appeal in rejected the proposition that principles of criminal liability are to be applied for the purpose of determining whether a person or the purpose of determining whether a person is guilty of acts falling within Article 1F(c), so that he or she must be shown to have participated in those acts either as a principal or on the basis of secondary liability in criminal law. Whilst international criminal law and international humanitarian law should be the principal sources of reference when dealing with such issues as complicity, the assessment of complicity was wider than a determination of criminal liability.

In AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240 the Court of Appeal heard an appeal concerning the deportation of a Jamaican national who was married to a British citizen with whom he had a child. Further, he had a child with from a previous relationship. The Court allowed the appeal, holding that although the Asylum and Immigration Tribunal had considered Article 8 ECHR in dismissing the appeal, it had only considered the family life of the potential deportee himself. The family life of the family as a whole had to be considered: the potential deportee's wife and children had to be considered as potential victims themselves.

In NC (bare talaq - Indian Muslims - recognition) Pakistan [2009] UKAIT 00016, the Tribunal held that the Muslim Family Laws Ordinance 1961 applies to Muslim divorces in Pakistan (other than the part of Kashmir which is in Pakistan), but that there was no similar restriction on divorce in India, and Indian Muslim husbands may lawfully divorce their wives by bare talaq, as may Pakistani Muslim husbands in that part of Kashmir which is in Pakistan. Such divorces were recognised by the United Kingdom (subject to the rules on domicile and habitual residence) pursuant to s.46 (2) of the Family Law Act 1986


Update on Zimbabwe asylum cases and Metock EEA family cases (DT 1144)
Friday 3 April 2009, Manchester, venue tbc, 2 - 4.45pm
Speakers: Steve Symonds, ILPA Legal Officer
2.5 CPD hours
ILPA members £100, CR*£50, others £200

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