Issue 168 – 25th January 2010

Monday 25 January 2010

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In AZ (rule 57(iv): external student, overseas degree) Pakistan [2010] UKAIT 00001 (22 January 2010) the Tribunal found that for the purposes of the Immigration Rules, 'external student' is a term of art, embracing a smaller class of students than all those studying externally for something: thus they reversed YS India.

In IK (Immigration Rules, construction - purpose) Pakistan [2010] UKAIT 00002 (22 January 2010) the Tribunal found that the Supreme Court in Ahmed Mahad and others [2009] UKSC 16 confirmed that the Immigration Rules have no over-arching purpose and must be construed sensibly according to the natural meaning of the language employed. The existence of paragraph 245V, which describes the purpose of the Tier 1 (post-study work) "route", does not entitle decision makers to re-write specific requirements of the Rules, which are on their face sufficiently plain, whether or not a judicial fact-finder thinks the provision in question might have been differently phrased.

Richards LJ in the Court of Appeal in KB (Trinidad and Tobago) v Secretary of State for the Home Department [2010] EWCA Civ 11 (22 January 2010) discussed Article 8 ECHR in a foreign criminal case. In the context of deportation in pursuit of the aim of prevention of disorder or crime, a person's criminal offending will be a factor in favour of removal and may in a particular case be given great or even decisive weight, though the actual degree of weight to be attached to it, and whether it is sufficient to render deportation proportionate, will depend both on the seriousness of the offending and on all the other circumstances of the case. The comment in EB Kosovo that "it will rarely be proportionate" to uphold an order for removal where it severs a genuine relationship with a spouse or child was directed specifically at removal and may need to be qualified in relation to deportation, but that is because of the effect that serious criminal offending can have on the overall balance rather than because of any difference of approach. The Strasbourg court has not laid down any test of impossibility or exceptional difficulty regarding a family's relocation.

Richards LJ in the Court of Appeal in JO (Uganda) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 10 (22 January 2010) again considered Article 8 and expulsion cases. The extent or quality of ties established by a person present in this country unlawfully, as compared with those established by a lawfully settled immigrant, goes simply to weight afforded them. The emphasis given to the position of a person who has been in the host country since childhood is relevant in the context of ordinary removal too. It is perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. Where the person to be removed is a person unlawfully present in this country who has also committed criminal offences, the decision to remove him may pursue a double aim, namely the prevention of disorder or crime as well as the maintenance of effective immigration control. If that is the case, it should be made clear in the reasons for the decision, since it affects the way in which the criminal offending is factored into the analysis.

Sir David Keene in the Court of Appeal in OO (Sudan) v Secretary of State for the Home Department [2009] EWCA Civ 1432 ruled that the Qualification Directive and the consequent Regulations do not widen the scope of the concept of persecution established under our own domestic case law. There had been no "shift in international consensus" since 2005 and the Court of Appeal decision in Amare.

Sales J in the Administrative Court in Awad (R on the application of) v Secretary of State for the Home Department [2009] EWHC (Admin) 3463 considered fresh claims and the right to work, and the government's ongoing refusal to implement the decision of the Court of Appeal in ZO Somalia. The appropriate test in the face of an authoritative decision of the Court of Appeal determining the rights of the claimant is a modification of the American Cyanamid test, for the degree of uncertainty as to the underlying legal position is very much less than in a pure American Cyanamid situation. Where the question of stay had an immediate impact on the rights and position of the claimant, by his being prevented from seeking employment, in the event of Supreme Court disagreement, it will be possible for the Secretary of State to withdraw the permission to work at that stage. It was relevant that the Secretary of State offered no cross­undertaking in damages to protect the interests of the claimant as a basis for the grant of a stay to protect the interests of the claimant under the conditions of uncertainty which existed, for the practical effect of that would be that the claimant might be found to have suffered harm and detriment for no good reason.
Patten LJ in the Court of Appeal in EM (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 1294 considered refugee sur place claims. He found that there was no presumption that the systems used by foreign security services to monitor political activities in the UK are foolproof: their effectiveness will be a matter of inference and degree. The more significant the political activity, the more likely that it will become apparent and therefore be of interest to those monitoring it.


On Monday 15 February from 10:00 to 17:00 hours, at Garden Court Chambers, 57-60 Lincolns Inn Fields, HJT Training hold a conference "Shedding the Single Tier: The New Immigration Appeals System 2010". Speakers include Mark Ockelton, Deputy President of the Asylum and Immigration Tribunal

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