Issue 133 - 6 April 2009

Monday 6 April 2009

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The Council of Europe Convention Against Trafficking in Human Beings took effect from 1 April 2009, creating minimum legal rights for victims. Of special interest to immigration lawyers is Article 10(1) addressing "Identification of the victims", which mandates that signatories shall staff provide its decision-making authorities with persons who are trained and qualified in preventing and combating human trafficking, in identifying and helping victims, including children, and ensuring that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits where "their stay is necessary owing to their personal situation."
(Home Office announcement)
(text of Convention)

Following Parliamentary approval, the new immigration fees announced on 12 February 2009 will be introduced from Monday 6 April 2009 for all those applying to visit, work in or stay in the United Kingdom. more info

The application forms for tiers 1, 2 and 5 of the points-based system are being revised from Monday 6 April. The previous versions of each of the forms will continue to be valid for applications made up to 21 days after 6 April 2009, as per the immigration rules.

The UK Border Agency is introducing a new process and fee for requests to confirm the non-acquisition of British citizenship, for nationals of countries that do not recognise dual nationality but are resident in the United Kingdom, who may find that their own country's government requires them to confirm that they have not become a British citizen before renewal of a national passport. These will apply to requests received on or after 6 April 2009.


In YS (Paragraph 57(iv): "external student") India [2009] UKAIT 00015 (12 March 2009) the Tribunal found that a person who intends to study at a private education institution for a degree awarded by another body can meet the requirements of the rules only if registered as a student with a UK degree awarding body.

To use a sporting analogy: The Highly Skilled: Two; The Government: Nil. Cox J in the Administrative Court in HSMP Forum (UK) Ltd., R (on the application of) v Secretary of State for the Home Department [2009] EWHC 711 (Admin) (06 April 2009) found that it would be unlawful for the Secretary of State to withhold indefinite leave to remain from all those members of the HSMP who were already on the scheme before the 3 April 2006, by reference to a qualifying period of 5 years continuous residence. Since the policy of 9 July 2008 does not so provide, it was unlawful.

Stanley Burnton LJ in the Court of Appeal in KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292 (02 April 2009) found that whereas the deliberate killing or injuring of civilians in pursuit of political objects are terrorist acts, acts of a military nature committed by an independence movement (such as the LTTE in Sri Lanka) against the military forces of the government are not in themselves acts contrary to the purposes and principles of the United Nations.

Rimer J granted permission to appeal to the Court of Appeal in LL (China) v Secretary of State for the Home Department [2009] EWCA Civ 155 (4 February 2009) to consider whether rule 276A(a)(v), which provides that a period of continuous residence would be considered broken if the applicant "has spent a total of more than 18 months absent from the United Kingdom during the period in question", must arguably be interpreted in a way which prevents prejudice due to its retrospective effect when read against the fact that neither policy in place prior to the introduction of the new rule in March 2003 suggested that absences could exceed 18 months.

Elias LJ granted permission to appeal to the Court of Appeal in MJ (Angola) v Secretary of State for the Home Department [2009] EWCA Civ 232 (4 March 2009) noting that section 42 of the Mental Health Act 1983 gives the Secretary of State power to discharge someone from hospital either absolutely or subject to conditions if he thinks fit, and that there may be some sort of relationship between that power and the power to deport. It was doubtful whether the Secretary of State lacked jurisdiction to make a deportation order for somebody who is detained in hospital, but there might be a question such as how the deportation order can properly bite in those circumstances, and whether the effect of the order is to permit the patient to be deported notwithstanding that the restriction order remains in force.


Peter Jorro and Mark Symes of Garden Court Chambers are giving a course for ILPA updating colleagues on Refugee and International Protection Law, on Wednesday 22 April 2009, at a London venue, 4.00pm - 7.15pm, for 3 CPD hours.
Nichola Carter and Philip Barth, Penningtons Solicitors LLP are giving a course on "Risk and compliance under the new sponsorship and civil penalty regimes. A guide to protecting clients and advisers" for ILPA on Tuesday 21 April 2009, London, 2.00pm - 5.15pm.

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