Issue 177 - 7th April 2010

Wednesday 7 April 2010

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In a speech on 31 March 2010, the Prime Minister explained that under the points-based system unskilled migrant workers from outside the EU will not be allowed into the UK due to reduced need for their services. The Prime Minister also said better training of British nationals would progressively tackle the skills shortages that have led to posts being filled by migrants. Two of the professions which have attracted most non-EU nationals (chefs and care workers) are to be removed from the shortage list by 2012 and 2014 respectively.
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The Immigration (Leave to Enter and Remain) (Amendment) Order 2010 No. 957
amends the Immigration (Leave to Enter and Remain) Order 2000 inserts a new article 8A into the 2000 Order. This enables an immigration officer to authorise a person in advance to enter the United Kingdom through an automated gate. Where such a person passes through an automated gate in accordance with the authorisation, the person will automatically be given leave to enter for six months (subject to the conditions set out in article 8A). Where such leave is given, no notice of the leave is given to the person. Where any question arises under the Immigration Acts as to whether a person has leave to enter the United Kingdom and the person alleges that the person has such leave by virtue of passing through an automated gate under article 8A, the onus shall be on the person to show the manner and date of entry into the United Kingdom.
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For now, the Greece third country cases have gone the way of the Italy ones with the decision of Cranston J in the Administrative Court in R (Saeedi) v Secretary of State for the Home Department [2010] EWHC 705 (Admin) (31 March 2010). He found that until the Strasbourg Court speaks again KRS must be accepted as authoritative. The assurances of Member States of the European Union are entitled to a very great weight, whereas reports from outside the government will be regarded as reliable depending on the seriousness of the investigations by means of which they were compiled and their corroboration from other sources. The Dublin Regulation, in particular the sovereignty clause, Article 3(2), must be interpreted and applied in the context of the Common European Asylum System and of fundamental rights as recognised in European Union law. There is nothing in the Dublin Regulation which requires the Secretary of State to use the Article 3(2) discretion to examine the substantive rights of others simply because aspects of the Common European Asylum System which apply to the receiving State, in this case Greece, are not fully observed. The Charter for Fundamental Rights cannot be directly relied on as against the United Kingdom although it is an indirect influence as an aid to interpretation. Nevertheless the Secretary of State must exercise his discretion under Article 3(2) of the Dublin Regulation taking into account these rights because the rights have a binding, interpretive quality through their recognition in the recitals, so the Secretary of State must ask himself whether, on the available evidence, there is a risk that Greece will not respect the human dignity of the claimant or not examine his right to asylum effectively. The Secretary of State exercises his discretion to withdraw third country action, under Article 3(2) of the Dublin Regulation, on a case by case basis absent policy or formal guidance.
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Burnett J in the Administrative Court in Stephenson, R (on the application of) v Secretary of State for the Home Department (Rev 1) [2010] EWHC 704 (Admin) (31 March 2010) found that, notwithstanding that the Claimant had engaged in an escalating pattern of criminal conduct, much of it involving Class A drugs and some of it involving the possession of weapons, the birth of a child was a factor showing his human rights claim was not "clearly unfounded". The submission that it took something beyond the mere existence of a child to make a claim of this nature arguable such a medical condition on the part of the child was rejected.
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Jackson LJ in the Court of Appeal granted permission to appeal in MM (Iran) v Secretary of State for the Home Department [2010] EWCA Civ 294 regarding the approach to refugee status granted by UNHCR, noting it was arguable that the Secretary of State erred in resolving to remove the appellant to a country from which he has been long departed, rather than to the place where he had achieved mandate refugee status under the UNHCR statute. Also to be considered will be the effect in this country of a decision by the UNHCR that an individual overseas, qualified for mandate refugee status, in circumstances where the individual arrives here unlawfully, forfeits that status and makes a fresh application for asylum.

Richards LJ granted permission to appeal to the Court of Appeal in MT & Ors (Eritrea) (R on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 275 as to whether it can be for the executive to decide for itself whether to suspend transfer, and in that way to deprive an applicant of the right that would otherwise arise under Dublin II to have his asylum claim determined by the requesting Member State on the expiry of the six-month period laid down by Article 20; and on whether there was procedural unfairness in deciding a contested issue of fact as to whether an asylum seeker had claimed asylum abroad against the applicant even though he had no opportunity to give evidence or call evidence or test the matters relied on by the Secretary of State.

HHJ Raynor QC sitting as a Deputy High Court judge in the Administrative Court in Khan (R on the application of) v Entry Clearance Officer New Delhi [2010] EWHC 517 (Admin) found that there was no conspicuous unfairness in an Entry Clearance Officer reconsidering an application with regard to the new mandatory refusal rules after an Immigration Judge had allowed an appeal where the effect of the determination was that there still had to be the obtaining of entry clearance in the light of circumstances existing at the time of the decision. There was no material difference because the rule change took place after the initial determination, which was the subject of the successful appeal, as compared to the position in the Odelola case where it took place before the initial determination.

In the Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 5 February 2010 in Brahim Samba Diouf v Ministre du Travail, de l'Emploi et de l'Immigration (Case C-69/10) the European Court of Justice recorded a reference asking whether it was unlawful to fail to give an asylum seeker a right to appeal to a court against the administrative authority's decision to rule on the merits of the application for international protection under the accelerated procedure.
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On 20 April from 13:00 to 19:00 hours, at 1 Liverpool Street, HJT Training hold one of the first of their courses specific to the challenges of re-accreditation, on asylum and Humanitarian Protection; on 21 April they run sessions on immigration and EEA law.
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On Friday 9 April 2010 ILPA have a course Sponsorship: Everything an experienced practitioner should know (Tiers 2, 4 & 5) in London, 2 - 5.15pm, taught by David Bickford and Nichola Carter of Penningtons Solicitors LLP.
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