Issue 156 - 5th October 2009

Monday 5 October 2009

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Alongside the launch of the sponsorship management system for Tier 4 of the points-based system on 5 October 2009, the UK Border Agency has announced new policy for Tier 4 sponsors and would-be students. The new policy centres on two main areas: (a) Extending the maintenance concession for Tier 4 applicants who are already in the United Kingdom - this aims at easing the transition process for would-be students.
(2) Tying Tier 4 students' permission to stay to their sponsors, if they make their application on or after 5 October - this is claimed to strengthen Tier 4 and strengthen the United Kingdom border. Click here.

Strasbourg, 01.10.2009 -The Council of Europe Commissioner for Human Rights, Thomas Hammarberg, has initiated a dialogue with Turkish authorities on minority rights and on the rights of asylum seekers and refugees. Noting with concern a reported increase of forced returns in 2008 to Iraq and Iran and alleged lack of investigation into certain cases, Commissioner Hammarberg urges the Turkish authorities to ensure the effective implementation of the principle of non-refoulement in particular at points of entry. This would include full abidance by the prohibition of collective expulsion of aliens, better training of and instructions to border officers and effective investigations into cases of alleged human rights violations. Click here.


Ouseley J in the Administrative Court in AFP Ahmed (R on the application of) v Secretary of State for the Home Department [2009] EWHC 2403 (Admin) (5 August 2009) found the decision maker irrational to say, when two parents cohabit with a child of four months, that there was no realistic prospect of an immigration judge holding that family life existing. Aa short term relationship where a couple would be cohabiting which may endure if not disrupted, where there is a young child who on the face of it would have a relationship with his father which would be disrupted potentially for their important early years, would give an immigration judge pause for thought. Looking at whether the rules would permit return, entry clearance as a spouse, fiancé or partner would require an Applicant to be over the age of 21. According to Treasury Counsel the June 2004 Immigration Directorate's instructions, chapter 9, section 2, say that the particular passages concerning age are not to be regarded as mandatory but as a normal basis for refusal, leaving open the possibility of an earlier application succeeding, and that thus under paragraph 320 the position is not quite so black and white and that there is scope within a proper interpretation of the rules for a discretion to be exercised by the entry clearance officer. However a possible delay of 3 years in relation to entry clearance as a spouse, fiancé or partner was a significant factor in the proportionality judgment.

Wyn Williams J in the Administrative Court in Michel (R on the application of) v Secretary of State for the Home Department [2009] EWHC 2404 (Admin) refused a challenge based on removal to Germany on 'safe third country' grounds. He found that the Claimants' family life in the United Kingdom might have been affected by the sense of security that they enjoyed in consequence of the interpretation placed by the courts on the Geneva Convention on the Status of Refugees eg where historically the third country did not offer protection against ill-treatment by non­State actors, but this would not affect a family who were not granted asylum over the relevant period and would no longer apply after the Qualification Directive entered effect.

Keith J in the Administrative Court in Mohammed (R on the application of) v Secretary of State for the Home Department [2009] EWHC 2369 (Admin) found that it was not irrational for the decision maker to decline to accept expert opinion that the Sudanese Security Service pay attention to what appears on the Aegis Trust's website which would then risk a claimant being likely to be detained and tortured on his arrival in Sudan.
Longmore LJ gave permission to appeal to the Court of Appeal in yet another case where it seemed that a judge on second stage reconsideration had, in reassessing credibility, gone beyond the bounds envisaged at first stage reconsideration: JN (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1003.
In a fresh claim challenge in the Administrative Court, in Essomba, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2300 (Admin) (16 September 2009), Grenfell J found that the Secretary of State is entitled to reject a document where there is good reason to consider that no immigration judge would accept it as genuine. However, he has to be careful to avoid predetermining the genuineness of a document where there is a credible issue raised as to its authenticity. Click here.

In an unlawful detention case, Timothy Brennan QC sitting as a Deputy High Court Judge found it disconcerting to find that a non-violent person subject to immigration control has been in detention, when not serving any sentence of imprisonment, for over 12 months while his status is assessed and his applications are dealt with. Such a period of incarceration requires justification and it was appropriate for the court to scrutinise it anxiously: Saleh, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2395 (Admin) (05 October 2009). Though it was justified in this case. Click here.


On 21 November ILPA will host their annual conference in central London. Click here.

On 22 October from 3 pm to 6 pm (3 CPD hours) Navi Ahluwalia and Briony Prior of Garden Court Chambers are presenting a course on Rule 39 applications to the European Court of Human Rights at 1 Liverpool Street, London EC2M 7QD. Briony brings the insight expected of a former Strasbourg staffer. David Jones will wrap up with a discussion of Country Guidance tactics and strategy.
To book via HJT Training please click here.

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