Issue 172 - 22nd February 2010

Monday 22 February 2010

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News

The First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber) replaced the Asylum and Immigration Tribunal as from 15 February 2010. see
http://www.tribunals.gov.uk/ImmigrationAsylum/
and
http://www.tribunals.gov.uk/ImmigrationAsylum/utiac/

The Children's Commissioner for England has produced a report critical of the practice of detaining children at the Yarl's Wood Detention centre. see
http://www.11million.org.uk/
For the government's response. see
http://www.ind.homeoffice.gov.uk/sitecontent/newsarticles/2010/February/yarls-wood-media-coverage

Cases

In Irving v UK (Appl # 8655/10) the ECtHR has granted, on 18 February, a rule 39 application staying removal in relation to an Articles 8 & 6 complaint in the case of an applicant, with a poor immigration history and criminal convictions, who is involved in care proceedings and seeking contact rights with his child. It is rare for the Strasbourg court to grant such stays in non-Art 3 cases. (no link available)

In R (Tshiteya) v SSHD [2010] EWHC 238 (Admin) Coulson J, in upholding a challenge to the SSHD's refusal to accept that the claimant had made a fresh human rights claim (in respect to a decision to deport him consequent to convictions) based on his and his British wife's and children's Art 8 rights to respect for their family life, held that the SSHD had failed to ask himself the right question over a series of five refusal letters with the very fact of so many letters being partly illustrative of the failure. Coulson J observed that the case-overload in the Administrative Court, with too many unmeritorious 'fresh' claims, could be lessened if the SSHD were to consider conceding such claims where a judge had granted permission following an oral hearing. see
http://www.bailii.org/ew/cases/EWHC/Admin/2010/238.html

In R (Boroumand) v SSHD [2010] EWHC 225 (Admin) Beatson J rejected the claimant's challenge to his being granted only 6 months of discretionary leave at a time instead of 5 years of humanitarian protection. The claimant had been convicted of causing GBH with intent in the UK; he also faced the death penalty for murder in Iran and for this reason his deport appeal was allowed on human rights grounds by the AIT which did not specifically consider HP and thus did not hold him to be excluded. Beatson J (1) distinguished TB (Jamaica) on the ground that in that case the decision on appeal had been to recognise refugee status whilst in the present case the AIT had merely held that the claimant could not be removed; (2) that renewable grants of 6 months' DL did not disproportionately interfere in the claimant's right to respect for his private life, as based on his problems with employment, banking and foreign travel. SSHD averred that new arrangements have been put in place by UKBA to decide DL renewals within 2 to 3 months. see
http://www.bailii.org/ew/cases/EWHC/Admin/2010/225.html

In R (The Equality & Human Rights Commission) v SSJ & SSHD [2010] EWHC 147 (Admin) Wyn Williams J granted a declaration that the defendants, acting through the UKBA and the National Offender Management Service, failed to have regard to their duties under Race Relations Act 1976, s 71 and Disability Discrimination Act 1995, s 49A when deciding that male foreign national prisoners were to be transferred to certain designated prisons. However Wyn Williams J also concluded that by 16 November 2009, at the latest, the defendant had paid due regard to its statutory duties by disclosing, on that date, an equality impact assessment. see
http://www.bailii.org/ew/cases/EWHC/Admin/2010/147.html

In OA (EEA - retained right of residence) Nigeria [2010] UKAIT 00003 the AIT has sought to interpret the provisions in the EEA Regulations 2006, regs 10 and 15 particularly in the context of a non-EEA national claiming a permanent right of residence (under reg 15(1)(f)) based on being a family member who has retained the right of residence (in particular under reg 10(5)). see
http://www.bailii.org/uk/cases/UKIAT/2010/00003.rtf

Events

On Tuesday 23 February from 16:00 to 19 :00 hours, at 1 Liverpool Street, HJT Training hold a course "Home Office Policies & Automatic refusals", the former addressing various Home Office policies relevant to enforcement, and the latter giving the latest insights on mandatory bans. see
http://www.hjt-training.co.uk/Home_Courses_Advocacy,_Immigration_and_Asylum_law_courses.html#64

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