Issue 146 - 6th July 2009

Friday 10 July 2009

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Violence in China's western region of Xinjiang has left at least 140 people dead and 800 people injured. Reports from Xinjiang suggest some internet and mobile services are blocked. View

The defence secretary concedes that there is a need for a new investigation into the deaths of 20 Iraqis in Basra in 2004 High Court is told.

India: Delhi High Court strikes down "sodomy" law 2/7/2009. View Human Rights Watch press release.

In AM (Somalia) v Entry Clearance Officer [2009] EWCA 634 the Court of Appeal dismissed an appeal and found that although the AIT did not address Article 14 ECHR, their failure to do so was not a material error of law because the immigration rule was not contrary to Article 14 ECHR. The Court of Appeal held that in respect of paragraph 281(v) of HC 395 (the maintenance requirement) there was nothing disproportionate as a general rule or in policy which makes self sufficiency a requirement of entry without a general exemption for disabled. The Court of Appeal accepted that although this would produce cases of hardship, that in itself did not render it disproportionate particularly where there is provision for exceptional compassionate circumstances. View

In VH (Malawi) v SSHD [2009] EWCA Civ 645 [Pill LJ dissenting]. The CA rejected an appeal of a Malawian woman who argued that she would lose contact and/or custody of her children to her husband and/or his family if returned to Malawi. Following an order made by Laws LJ, by consent of the parties A's case was remitted to the Tribunal. The Tribunal subsequently dismissed the appeal. A appealed to the Court of Appeal again. It was argued that the consent order and the statement of reasons agreed by the parties previously before the Court of Appeal limited matters to a single issue of risk on return to Malawi and limited the scope of reconsideration to that one issue before the Tribunal. It was argued that it was not open to the Tribunal hearing the appeal to re-open other issues. The Court of Appeal disagreed and rejected any such limitation of issues on the basis of a statement of reasons agreed by both parties. The Court of Appeal held that the Tribunal did in fact follow previous findings relating to credibility and the historical account but that it was open to the Tribunal to reassess the factual position for the appellant on return to Malawi. The Tribunal on reconsideration had considered new information in the form of a husband's determination and concluded that there was no credible evidence that A's husband or his family had no interest in the children and concluded that A was not at risk of losing custody or contact with her children. In addition, the Court of Appeal found that the husband's determination which the Tribunal found by its own initiative was admissible and that the Tribunal were entitled to rely on it. The Tribunal's approach to the husband's determination was rational and reasonable despite the fact that the husband was accepted to have lied to UK and Malawian courts, that he was not available for cross examination, that he had denied paternity of one of the children.

Pill LJ dissenting held that the statement of reasons did limit the scope of reconsideration and that A had not had a fair hearing and that the appeal ought to be remitted because the Tribunal should not have taken into account evidence in separate proceedings in the circumstances they did. Whilst Pill LJ accepted that the Tribunal was entitled to consider the husband's determination it was its approach to its contents which were erroneous.

R (on the application of J) v SSHD (2009) Mr Justice Mitting held on 26th June 2009 (unreported) that a failed asylum seeker with a bad immigration history should not be granted Indefinite Leave to Remain under a 7 year concession policy which applied to parents who had children who were born in the UK or lived in the UK continuously for 7 years.

In NA & Others (Tier 1 Post Study Work Funds) [2009] UKAIT 00025 the Asylum and Tribunal [SIJ Storey and SIJ Perkins] considered the new immigration rules relating to Post study work and the maintenance requirement and held;

i. The new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.

ii. The effect of para 245Z (e), read together with Appendix C of the Immigration Rules and closely related parts of the Policy Guidance dealing with Tier 1 (Post-Study) Work, is that, to qualify, an (in-country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.

iii. This requirement, however, is relaxed for those who applied before 1 November 2008. Under transitional provisions they were only required to provide a bank statement showing a closing balance of £800 or over bearing a date anywhere within the period of one month immediately preceding the date of application.

iv. The requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts.

v. Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to apply s.85(4) of the Nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application.

vi. However, until s.85A of the 2002 Act is brought into force (subsection 85(4)(a) of which stipulates that in respect of appeals in Points Based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying), it remains possible for appellants to satisfy the requirements of para 245Z(e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application. View



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