Issue 31 - 23rd October 2006

Monday 23 October 2006

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News

Lord Falconer announced at the Law Society annual conference in London that he was scrapping plans for fixed fees instead of hourly rates in family and civil legal aid cases pending a complete rethink. He also pledged to reconsider the timetable for the scheme, which had been due to start in April. It is likely that the proposed market-based reforms will not now come in before 2008. more info

The Department of Constitutional Affairs has published the responses to its proposed amendments to the Asylum and Immigration Tribunal's Procedure Rules. more info

The Home Secretary John Reid is due to propose tight restrictions on the numbers of Bulgarian and Romanian Nationals eligible to work in the UK after 1st January 2007. Reid is proposing time-limited controls on the right of citizens from both countries to work in Britain when they join the EU. He is expected to say that Britain will take a limited number of unskilled workers to carry out jobs such as fruit picking, but will not offer a general right to work. The move is expected to be accompanied by enforcement measures to prevent people entering the black market. more info

Cases

K v Secretary of State for the Home Department : Fornah v Secretary of State for the Home Department[2006] UKHL 46

The House of Lords held that the Guidelines on International Protection, issued by the UNHCR provided a useful digest of the relevant international authorities on membership of a particular social group. Council Directive 2004/83 Art.10(d)(i) and (ii) were also useful guides which national authorities should take into account when deciding membership of a particular social group.

In Fornah’s case, it was held that women in Sierra Leone were a particular social group for the purposes of Art.1A(2). It was accepted that women in Sierra Leone shared a common characteristic, namely a position of social inferiority as compared with men and female genital mutilation was an extreme expression of the discrimination, to which all women in Sierra Leone were subject. If this wider definition of social group was thought to be unworkable, it would be appropriate to accept the alternative definition advanced by the UNHCR - intact women in Sierra Leone. In ‘K’, it was accepted that a family could be a particular social group for the purposes of Art.1A(2), the questions were whether the adjudicator had been entitled to conclude that the family of K's husband was such a group and, if so, whether the real reason for the persecution which she feared was her membership of that group.

Secretary of State for the Home Department (Respondent) v. K (FC) (Appellant) Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)

Tehrani v Secretary of State for the Home Department[2006] UKHL 47

The national scope of immigration legislation and the asylum and immigration appeal tribunal system meant that the superior courts of both Scotland and England and Wales have jurisdiction to review decisions made by the tribunal, irrespective of where they were made. However, except in exceptional circumstances, the appropriate court for an application for judicial review was the Court of Session where the immigration judge made the determination in Scotland, and the High Court where the immigration judge made the determination in England or Wales.

Tehrani (AP) (Appellant) v. Secretary of State for the Home Department (Respondent) (Scotland)

SA (Somalia) v Secretary for the Home Department[2006] EWCA Civ 1302

The Court of Appeal found that a doctor's report amounted to no more than a record of the appellant’s history as told to the doctor and his own explanations for the injuries found on examination. The report expressed no separate view as to whether the explanation given for the wounds found was consistent with the account given by the appellant, or whether there were other possible causes. Therefore the report was inadequate for the task that it was meant to perform, namely to corroborate the appellant’s account. However if the report had included an express opinion as to the causation of the injuries it would have been impermissible to determine the central question of credibility without having regard to that opinion. SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302 (10 October2006)

Temiz, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2450 (Admin)

HHJ Collins held that the ratio of Dari & Tum Veli Tum, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 788 was limited to a finding that the domestic law in force on 1 January 1973 should be applied in applications under the Ankara Agreement. The decision in Dari & Tum went no further than to establish that the standstill clause applied to all Turkish nationals who sought to set up business here. It did not mean that any one who has established a business or created the opportunity to make a claim under the relevant provisions of HC 509 or HC 510, while here unlawfully, must succeed in an application under the Agreement. As the 1973 domestic immigration law fully justifies refusal of leave to enter without any need to consider the Rules, unless, in a given set of circumstances, the Secretary of State decides to exercise his discretion.

Temiz, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2450 (Admin)

Council Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted

European Council Directive 2004/83/EC was to be implemented by the10th October by all member states. The Directive introduces a number of clarifications in the application of the Refugee Convention within the European Union and defines a new status for those at risk of ill treatment but who are not entitled to refugee status. The implementation in the United Kingdom is by ‘The Refugee or Person in Need of International Protection (Qualification) Regulations 2006’ ( SI 2006/2525 ) and a statement of changes in Immigration Rules ( Cm 6918 ), have come into force. Accordingly the AIT Practice Direction ‘Re; Asylum Qualification Directive 2004/83/EC ’ states that:

Subject to any argument to the contrary in any individual case:

(a) the Tribunal will treat the changes to the Immigration Rules under Cm 6918 as applying to all applications and appeals pending on 9 October 2006 as well as to decisions made on or after that date;

(b) in the case of appeals pending on 9 October 2006 (but not appeals filed after that date) the Tribunal will treat the grounds of appeal as including, and as having always included, such grounds as are needed in order to enable it to consider matters under the Regulations and the changes to the Rules both on initial appeal and on any reconsideration.

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