Issue 143 - 15th June 2009

Monday 15 June 2009

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Under a concession agreed by the UK Border Agency for this year only, students applying to study for A-Levels in the United Kingdom are allowed to make a visa application based on a conditional offer from their education provider. This concession, which only applies to applications made overseas, is in recognition of the fact that GCSE results are not released until the end of August while some courses begin in early September. See

Cases

In SD (Para 320: findings desirable) Pakistan [2009] UKAIT 00021 (12 March 2009) the Tribunal found that when the general refusal reasons in immigration rule 320 have been the subject of submissions at a hearing, it is highly desirable for an Immigration Judge to give his views on the applicability of that paragraph, because an individual's previous immigration history may be of very considerable importance to future applications of theirs. Where paragraph 320 is dealt with at a hearing an Immigration Judge should if possible give a view in his determination on the issue, for otherwise when an aspect of the refusal has not been specifically dealt with or reversed in a determination, an Entry Clearance Officer, who may have made a mistake of fact or of law in relying on it first time, will feel reinforced in his view on a second application. See

The Strasbourg Court on 11 June 2009 made a decision, S.D. v. Greece (application no. 53541/07), finding that Greece's detention facilities, at least near the Greek/Turkish border, breach Article 3; and that the inability of the Claimant in that case to challenge detention breached Article 5. See

In JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 562 the Court of Appeal gave permission to appeal a human rights case involving an HIV sufferer. The legal team argued that the Home Office policy on leave to remain in health cases is unlawful because N in Strasbourg does not provide a complete answer to the special position of a person where the United Kingdom has voluntarily assumed responsibility for their healthcare and granted leave to remain on that basis.
Pitchford J in the Administrative Court in Kagabo (R on the application of) v Secretary of State for the Home Department [2009] EWHC 153 (Admin) (12 February 2009) found that while the Tribunal is considering an application for reconsideration having extended time for the application, section 78 does not prevent the removal of the applicant. A decision to remove while an extension of time application is awaiting decision is reviewable by the High Court in proceedings for judicial review. Where the claimant has "an arguable complaint" that her refugee status or her ECHR rights will be violated by removal, the court will be required to exercise its discretion in the claimant's favour.
David Holgate QC sitting as a judge of the Administrative Court in Khan Udtha (R on the application of) v Secretary of State for the Home Department [2009] EWHC 1287 (Admin) (30 April 2009) considered the Home Office's decision making process for work permits. He found that the Secretary of State had the power in the review process to review the merits of the application generally and thereby rely upon additional grounds, whether or not material to support that new ground was in existence at the time of the first decision. If a new ground is raised at the second review decision stage then consideration will need to be given as to how the requirements of fairness may be satisfied, for example, by giving notice to the applicant of the point and, secondly, by affording an adequate opportunity to deal with it. The way in which the requirements of fairness are met will need to be considered carefully and will depend upon the particular facts of each case.

Events

On Wednesday 17 June 2009 from 4 - 6.15pm at a London venue, Mark Emery of Bindmans LLP will be giving a course on Employment Law for Immigration Practitioners. See

On Tuesday June 30, from 4 - 7 pm, at a London venue, HJT Training is running the course "Challenging the Tribunal", a practical guide to review and reconsideration, presented by Geri Peterson. See

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