Issue 160 - 2nd November 2009

Monday 2 November 2009

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Blake J in the Administrative Court in Karim (R on the application of) v Secretary of State for the Home Department [2009] EWHC 2714 (Admin) considered the administrative processing of "legacy" cases at the Home Office. He found that the policy that defined "seriously mishandled" cases as falling within the exceptional class requiring expedition cannot realistically be said to have contemplated every case of non¬application of an applicable policy: "anyone familiar with this sensitive area of public administration knows there are a great many policies published, unpublished, half published, clear, unclear, completely obscure, which may or may not apply to various people at various times".

In Mikolenko v Estonia (Application no. 10664/05; 8 October 2009) the European Court of Human Rights found that detention once the applicant's expulsion had become virtually impossible as for all practical purposes it required his co-operation, which he was not willing to give, was not with a view to his deportation. Detention for three years and seven months could not be justified by an expected future change in the legal circumstances even if the conditions of detention as such were adequate. Read more.

Nicol J in the Administrative Court in Hussein v Secretary of State for the Home Department [2009] EWHC 2492 (Admin) ruled that the automatic deportation provisions of the UK Borders Act 2007 apply to those who were convicted between 1st November 2007 and 31st July 2008. The implied limitations on detention in such cases set out in Hardial Singh and I still applied, with some modifications. Thus detention must still not exceed a period which is reasonable in all the circumstances. The Secretary of State will have to act with reasonable diligence and expedition to effect deportation. What is reasonable will no doubt take account of the totality of the period that the person concerned has spent in detention after the conclusion of his criminal sentence pursuant to immigration. In cases where there are a few months between sentence and the automatic release date, if the initiation of the process is delayed, it is likely to prolong the period of s.36(1)(a) detention, which may be incompatible with the duty to act with due diligence. Read more.

The Opinion of Advocate General Mazák in the ECJ delivered on 20 October 2009 in London Borough of Harrow v Nimco Hassan Ibrahim and Secretary of State for the Home Department (Case C/310/08) was supportive of Baumbast style cases. His view was that the children of an EEA national who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker are entitled to reside there in order to attend general educational courses there pursuant to Article 12 of Regulation (EEC) No 1612/68; and that their primary carer parent is able to reside with them in order to facilitate the exercise of their right, and the fact that the children and their primary carer are not self-sufficient and are dependent upon social assistance in the host Member State and the length of time the children have been enrolled in general educational courses in the host Member State are irrelevant. Read more.

The Opinion of Advocate General Kokott on the same day, in Maria Teixeira v London Borough of Lambeth and Secretary of State for the Home Department (Case C/480/08) was that where a child of a Union citizen is in education in a Member State in which that Union citizen is or has been employed as a migrant worker, the parent who is the child's primary carer enjoys a right of residence in the host Member State that is derived from Article 12 of Regulation (EEC) No 1612/68. There is requirement they possess sufficient resources and comprehensive sickness insurance cover, nor that they themselves should have been employed as a migrant worker in the host Member State when the child first entered education; and that the right of residence of that parent ends when the child reaches the age of majority, unless the circumstances of the individual case are such that it is appropriate for the child to be looked after personally by that parent beyond that point so as to ensure that the child is able to pursue and complete its studies. Read more.


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

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