Issue 147 – 20th July 2009

Monday 20 July 2009

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News

Three law firm workers have been given prison sentences totalling 16 years for providing false immigration documents. see

The UKBA has announced some very large fines being imposed on a restaurant for employing illegal workers. see

Cases

In SSHD v HH (Iraq) [2009] EWCA Civ 727 the CA held that a decision to make a deportation order was "enforcement action" for the purposes of a policy, extant at the date of that decision, that enforcement action should not be taken against nationals who originate from countries which are currently war zones. The AIT had been correct to hold that the SSHD's failure to take this policy into consideration meant that the appealed against decision to deport was not in accordance with the law despite the fact that the SSHD had withdrawn the policy prior to the hearing before the AIT. The CA rejected the SSHD's submission that it could have made no difference because had the SSHD been aware of her own policy when she made the decision she would have withdrawn the policy there and then: per Sedley LJ at [14]: "This is, with respect, a remarkable submission. It implies that policies may be torn up whenever the policy-maker finds them inconvenient or embarrassing. For my part I do not believe that the important power of government to make and remake policy is exercised in this way, and I am not willing to decide this appeal on an assumption that it would have been in the present case." see

In DA (Colombia) v SSHD [2009] EWCA Civ 682 the CA reiterated that a sentencing judge must consider only matters relating to past, present and possible future offences when deciding whether or not to make a recommendation to deport; it is for the SSHD alone to take account of ECHR matters and any other considerations that are personal to the offender and his family when he comes to consider whether or not to make a deportation order under 1971 Act, s. 5(1). Accordingly, the SSHD only has to have regard to and comment upon those remarks of the criminal court - on whether or not to recommend deportation - which are within the expertise of the criminal court, but not otherwise. see

In SSHD v QY (China) [2009] EWCA Civ 680 the CA held that: (1) the judge had correctly approached certification under 2002 Act, s. 94 as an issue on which he had to reach his own conclusion. (2) However where, as here, the applicant relied on elements of private life, based principally on her studies, which she had only enjoyed in the UK because of her having obtained an injunction preventing earlier removal and where it had then subsequently been found that such removal would have been lawful, her claim under Art. 8 was clearly unfounded. see

In AL & Others (Malaysia BOCs) Malaysia [2009] UKAIT 00026 the AIT held that: (1) Malaysian BOCs who have (or have had) Malaysian nationality cannot derive from their status as BOCs a right to enter or reside in the UK; (2) The refusal to recognise such a right is not a breach of Arts 3, 8 or 14 of the ECHR; (3) A Malaysian BOC does not lose Malaysian nationality by a unilateral voluntary act of applying for a BOC passport or of purported renunciation of nationality. Deprival of nationality and acceptance of renunciation require a formal act of the Federal Government and are not automatic or irreversible. see

In LG and CC (EEA Regs: residence; imprisonment; removal) Italy [2009] UKAIT 00024 the AIT (presided over by Carnwath LJ in his role of Senior President of Tribunals) held: (1) Time spent in prison does not count towards the acquisition of the level of protection afforded to an EEA national by regulation 21(4) of the Immigration (European Economic Area) Regulations 2006, even for a person who has a right of permanent residence in the United Kingdom. (2) A clear distinction is required to be drawn between the three levels of protection against removal introduced in the 2006 Regulations, each level being intended to be more stringent and narrower than the immediately lower test. see

 

 

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