Issue 34 - 14th November 2006

Tuesday 14 November 2006

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The Joint Committee on Human Rights published its report ‘The Human Rights Act: the DCA and the Home Office Reviews’.

The Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls)(Amendment) Order 2006, SI 2006/2908 was made on 4.11.6 and comes into force on 18.11.6. It adds to the powers that may be exercised by immigration officers and persons authorized by the Secretary of State in the ‘control zones’ in France. The new powers include the power to take fingerprints and to search ships, aircraft and vehicles.

The Immigration Rules relating to the Highly Skilled Migrants Programme are amended by HC 1702. The changes to the requirements for an extension of stay as an HSMP took effect on 8.11.6 the day after the rules were laid before Parliament. The usual practice is that rules do not take effect until 28 days after being laid before Parliament: the intention was to prevent the making of applications intended to preempt the effect of the rule changes.

Recent caselaw

WM(DRC) v SSHD [2006] EWCA Civ 1495 on the test to be applied on judicial review of a refusal by the Secretary of State to treat representations as a fresh claim for asylum or human rights claim. It was not for the Court to reach its own view of whether the potential fresh claim had a realistic prospect of success. The Court had to decide only whether the Secretary of State had asked himself the right question and whether, in answering it, he had come to a conclusion that was open to him on the evidence, bearing in mind the obligation to give ‘anxious scrutiny’ to an asylum claim.

W(China) v SSHD [2006] EWCA Civ 1494 on the requirements to be satisfied by non-EU citizen parents asserting a right of residence in the UK deriving from their child’s EU citizenship and right of residence. Held that the citizen child and non-citizen parents had to demonstrate the possession of sickness insurance and sufficient resources to avoid becoming a burden on the social assistance system of the UK. 

El-Sheikh v SSHD [2006] EWCA Civ 1411. The tribunal, by asking itself whether the appellant’s past low level political activities gave rise to a current fear of being persecuted asked itself the wrong question. The question it should have asked was whether, in the light of what had happened to him in the past, the appellant would be at risk if, on return to Sudan, he resumed the same level of political activity.

Afshar v SSHD [2006] EWCA Civ 1440. The court did not need to decide whether the value of a person’s work to the community was relevant in assessing proportionality in an article 8 private life claim.  However, Moses LJ observed that immigration control was only one aspect of the public interest and it might be that the benefit to the community from an individual’s work would diminish the weight to be given to the interest in immigration control.

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