Issue 15 - 30th May

Tuesday 30 May 2006

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Government and Parliament

John Reid has made two immediate changes to current guidance relating to the deportation and removal of foreign nationals who have received custodial sentences, Written Ministerial Statements 23rd May 2006:

"To enable them to deal effectively with the current flow of cases, I have agreed two immediate changes to the system. The first change is to prioritise cases for consideration according to the degree of risk a person poses to the public. At present the criteria for consideration for deportation includes people who have committed several minor and non-violent offences, but excludes those who have had two custodial sentences of under a year for, say, actual bodily harm. This is a perverse outcome in public protection terms. I have therefore authorised that instead of considering for deportation those with three convictions regardless of seriousness or risk, the Immigration and Nationality Directorate will now consider for deportation all non-EEA nationals who have been given 12 months prison sentence, either in one sentence or as an aggregate of two or three sentences.

The second immediate change is to tighten the guidance given to caseworkers in deciding whether or not an individual should be deported. Rule 364 of the Immigration Rules, which sets out the criteria which officials should weigh in the balance against a person's crime in taking the decision whether to deport and which dates back to 1994, currently goes wider than the requirements of the Human Rights Act and the European Convention on Human Rights would stipulate. It is not right that the system should tilt the exercise of discretion in favour of the criminal rather than public safety in this way. I have therefore approved the issuing of new guidance to caseworkers which interprets the decision-making criteria much more tightly." Click Here for more info

The Home Office reports that removals of failed asylum seekers are reaching record high figures: "More failed asylum seekers were removed in the first three months of this year than ever before, according to statistics published by the Home Office today.

Quarterly asylum figures show that while asylum applications in the first quarter of 2006 are up five per cent on the previous quarter, they are still lower than in the same period the year before. Meanwhile, removals have increased dramatically - up 19 per cent on the previous quarter and 43 per cent when compared to the previous year." Click Here for more info

Meanwhile the latest asylum figures show that 1 in 4 asylum appeals are successful:
Click Here to read more

News

The Information Commissioner has served an Enforcement Notice to resolve the issues arising from a number of similar complaints relating to disclosure of advice given by the Attorney General on the legality of military intervention in Iraq in 2003.

Full transcript of Enforcement Notice 22/05/06 Click Here to read more

Case-Law

Asylum Support

R clarifies the approach that Asylum Support Adjudicators should adopt when failed asylum seekers have physical impediments to travel or for some other medical reasons. The approach is a two tier test, firstly, the Adjudicator had to ask was whether an Applicant was unable to leave the United Kingdom and if so, then the Adjudicator should go on to decide whether that inability was by reason of a physical impediment to travel or for some other medical reason.
R (on the application of the Secretary of State for the Home Department) v Asylum Support Adjudicator [2006] All ER (D) 237 (May)

Further, on Garden Court's Latest news page the following relevant case appears
R (M) v Slough Borough Council 25/05/2006
M was an asylum-seeker who was HIV+. He was fully able to care for himself and function normally, but if he became homeless he was at increased risk of injury. The Court held that M was entitled to residential accommodation from the local authority and did not have to accept asylum support from NASS. Subject to any appeal to the House of Lords by the local authority, this case finally clarifies that the 'destitute plus' test in the National Assistance Act 1948, s 21(1)(A) does simply refer to a person who is destitute and also more vulnerable than a healthy, able-bodied person, for example, because he is also ill.

Stephen Knafler (instructed by Hackney Community Law Centre) was counsel for the Respondent. Click Here to read more

The Tribunal

Immigration Appeal Tribunal Starred Appeal

The requirement in para 281 that a marriage be "subsisting" is not limited to considering whether there has been a valid marriage which formally continues. The word requires an assessment of the current relationship between the parties and a decision as to whether in the broadest sense it comprises a marriage properly described as "subsisting"

The Immigration Judge accepted that the Appellant and the Sponsor were married in 1982 and lived together in Ghana for 2 years between 1982 and 1984, and they had 2 children together, both of whom are now adults and live in Ghana. He also accepted the medical evidence of the Sponsor's ill-health. However on the basis of extensive inconsistencies and unreliability in the evidence, he did not accept that they were together after 1984. He noted material inconsistencies concerning the alleged remittances by the Sponsor to Ghana and concluded that such as were sent to the Appellant in her own name in 2000 were intended not just for her but also the children. The evidence as a whole did not amount to regular support for her over the years, and the resumption of payments to her in her own name in 2005 had to do with this application for entry clearance. Click Here to read more

High Court

As appears on the Garden Court Latest news page of our site the Afghans hijackers have won their Judicial Review. In a judgment given on 10 May 2006, Mr Justice Sullivan held that the decision of the Secretary of State to deny the claimants leave to enter the United Kingdom notwithstanding that they had succeeded in their claim that to remove them to Afghanistan would be in breach of their rights under Article 3 ECHR was unlawful. A Panel of Adjudicators had decided that the nine remained at risk of targeted attack from remnants of the Taleban still active in Afghanistan. Duran Seddon was junior (led by Rabinder Singh QC) - they appeared on behalf the nine appellants.

Click Here to view the Judgment

The case of Baiai and Others v SSHD with JCWI intervening [2006] EWHC 1035 (Admin) arose when the Claimants who had brought successful applications for judicial review against the Secretary of State for the Home Department challenging the regime, under which they had to apply for a Certificate of Approval to get married. The Claims were for damages subsequent to the Court's previous finding that the requirement to apply for a Certificate of Approval was incompatible with first article 12 of the European Convention on Human Rights as it was not proportionate and second article 14 of the ECHR on the grounds that it discriminated on the grounds of religion and nationality. Damages were claimed contending that in this case, the claimants had suffered first clear pecuniary loss in the form of their obligations to pay the fees of £135 in support of their applications for a COA and second such serious distress, worry and mental suffering as to entitle them to general damages. The Claimants contended that the Secretary of State's conduct constituted, "a deliberate and completely groundless violation on a discriminatory basis in respect to the most serious grounds under article 14 religion and nationality". Mr Justice Silber found that the Claimants were not entitled to recover the Application fee as some charge would have inevitably been made at paragraph 29: "If the Secretary of State had imposed, as he was and is quite entitled to do, a proportionate system of scrutiny for sham marriages, it seems that there could have been no valid and rational objection to a charge of £135 for it. In that case, in order to obtain consent to marry, each of the claimants would have had to pay this sum or perhaps a larger sum on account of the extra work needed to process and appraise their applications with the consequence that the claimants would not have been worse off financially than they are now. This means that the claimants are not entitled to recover the fees of £135."

Further, The Judge decided that where there had been interferences with article 12 rights no damages were payable on the grounds that the declaratory relief of finding the violation itself amounted to just satisfaction, he further found that they were not entitled to damages for breach of their Article 14 rights. Click Here to read more

Abroad

The US Senate has passed a major bill which paves the way for millions of illegal immigrants to seek citizenship in the country. Click Here to read more

Publications

Amnesty International annual report 2006 published Click Here for details

Joint Committee On Human Rights Nineteenth Report published which assesses the United Kingdom's compliance with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Click Here for details

Garden Court Chambers Seminars

Free Immigration Seminar - The new Citizens' Directive and EEA Regs - 3cpd
4-7pm 31st May 2006 and repeated on 13th June 2006
Click Here for more details and to book a place

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