Issue 41 - 29th January 2007

Monday 29 January 2007

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News

On 21 January 2007, it was reported that the Secretary of State, John Reid MP, stated that the Home Office could be split into two departments under recommendations made by him. One department would deal with security issues and the other with justice under the plans, which are set be to put to the Cabinet for discussion. News report

On 23 January 2007, the he Parliamentary Constitutional Affairs Committee began hearing evidence in its inquiry into the implementation of the Carter Review of Legal Aid. The first evidence it heard was from: Professor Ed Cape; Professor Judith Masson; Rt Hon Sir Anthony Clarke, Master of the Rolls; Rt Hon Sir Mark Potter, President of the Family Division, and Rt Hon Lord Justice Thomas, former Senior Presiding Judge Further information

Legislation

On 25 January 2007, the House of Commons ordered the new 'UK Borders Bill' to be printed. It was introduced into the House of Commons also on that date. The purpose of the Bill is to implement parts of the the IND Review 'Fair, Effective, Transparent and Trusted: Rebuilding Confidence in our Immigration System' (published in July 2006). It contains measures intended to underpin the Border and Immigration Agency. The Bill has 46 clauses and one schedule. The five parts of the Bill are: 'Detention at ports', 'Biometric registration', 'Treatment of claimants', 'Enforcement', 'Deportation of Criminals', 'Information' and 'General'.

Among the key provisions of the new Bill are as follows (note the following is not an exhaustive summary of the provisions of the Bill):

  1. The Secretary of State may designate immigration officers acting at ports so that they have powers to detain pending the arrival of a police constable and new offences are created of absconding from detention and assaulting or obstructing an immigration officer in the course of exercising this power (clauses1-4).
  2. There will be a power to make regulations to require those subject to immigration control apply for a document that records external, physical characteristics (a 'biometric immigration document') (clauses 5-6)
  3. The Immigration Act 1971 is amended so that reporting and residence conditions may be imposed on those with limited leave to enter or remain in the UK (clause 16)
  4. Non-UK nationals committing acts outside the UK, suspected of facilitating illegal entry of persons to the UK, may be charged with facilitation offences (clause 26)
  5. Acts relating to trafficking for exploitation committed by persons after arrival in the UK but prior to their 'entry' will render the person criminally liable. The extra-territoriality of liability for trafficking offences is also extended (clause 27)
  6. Conditions and procedures are laid down under which foreign national prisoners will be deported automatically. Provisions are also made for the appeal rights, time-scale of deportation and detention for such persons beyond the end of their sentence.

For the UK Borders Bill Click Here

For the explanatory notes to the UK Borders Bill Click Here

Cases

FP (IRAN) v SECRETARY OF STATE FOR THE HOME DEPARTMENT; MB (LIBYA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2007), 23 January 2007, [2007] EWCA Civ 13, Times January 26, 2007.

In this case, rules 19(1) and 56 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 were found to be unlawful in that they denied a party the opportunity to be heard where, as a result of the failings of their representatives, the applicants did not know of their hearing dates - their cases decided against them in their absence. Thus the Rules themselves were unlawful because they forfeited what constitutional law, consonant with the European Convention on Human Rights 1950 Protocol 1 Art 6, regarded as a fundamental right, namely the right to be heard on an issue of great importance to the individual, and they did so on grounds so widely and rigidly prescribed, that they shut out parties who had done nothing wrong but whose lives and safety may in consequence be put at risk. The Rules were thus outside the powers given to the rule-maker by s.106.

Note: Rule 19(1) provides that the Tribunal must hear and appeal in the absence of a party/rep if the Tribunal is satisfied that the party or his rep have been given notice and have given no satisfactory explanation for their absence. Rule 56 requires persons representing a party to notify the Tribunal of their address and deems service upon the party at that address unless and until it is notified of a change of address Read the transcript

OA (ENTRY CLEARANCE OFFICER: SERVICE OF DOCUMENTS) NIGERIA [2007] UKAIT 00009, AIT Reported, 25 January 2007
If an Entry Clearance Officer fails to comply with directions of the Tribunal to produce and file an explanatory statement and supporting documents, then the ECO takes the chance that the Tribunal will not understand the ECO's reasoning process and disagree with the ECO's assessment of credibility. Documents submitted by the non-defaulting party may be considered. Where the applicant's documents are relied upon, an ECO will be hard pressed to complain about evidence of the ECO suggesting that documents submitted by the applicant were forged where that evidence was not placed before the Tribunal. Read the transcript

R (S) -V- SECRETARY OF STATE FOR THE HOME DEPARTMENT, ADMINISTRATIVE COURT, 26 January 2007, [2007] EWHC 51 (Admin)
In this case there had been a failure of the Secretary of State to deal with a claim for asylum from an Afghan national for four and a half years. During part of that time, SSHD had a policy of granting four years' exceptional leave to Afghan nationals (which led to indefinite leave). On a challenge to a certificate issued to prevent a further appeal to the AIT (see s96 2002 Act), Collins J held that the delay, on the facts of the case, although excessive, did not of itself bring the case within the Rashid principle of 'conspicuous unfairness'. However, applying the principles collected together in HB & Others -v- SSHD [2006] EWCA Civ 1713, the effect of the delay on the proportionality decision was such as to negative the assertion of the Secretary of State that the applicant should leave to apply for entry clearance overseas. The determining factor in this connection was also the compelling fact that there was no facility in Afghanistan at present for issuing entry clearance. Read the transcript

R (MIFAIL RUDI & TASMIM IBRAHIMI) -V- SECRETARY OF STATE FOR THE HOME DEPARTMENT, ADMINISTRATIVE COURT, 26 January 2007, [2007] EWHC 60 (Admin)
In this case, the applicants advanced the argument that the 'family clearance' exercise (and the extension to that exercise) discriminated unlawfully against those who arrived in the UK as unaccompanied minors (see Article 14 ECHR). The Court held that the point was decisively determined against the applicants by the Court of Appeal in AL (Serbia) -v- SSHD [2006] EWCA Civ 1619 and that a further, common law discrimination argument. Also stood or feel with the decision in the Court of Appeal which was binding upon the Administrative Court. A further submission based on the 'fresh claim' principles on behalf of Mr Ibrahimi also failed. Read the transcript

AM (SERBIA) (2) MA (PAKISTAN) (3) MA (SUDAN) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2007), 31 January 2007, CA, [2007] EWCA Civ 16
In this case, three asylum seekers appealed against decisions of the AIT in which it had refused to permit amendments to the grounds upon which the Immigration Appeal Tribunal had granted permission to appeal. By the time the matter came on for substantive hearing before the IAT, the same had been abolished in favour of the AIT. As a result, the transitional provisions under the Asylum and Immigration Tribunal (Procedure) Rules 2005 r.62 applied to the cases.
The Court held that, albeit the Rule precluding amendment was within the powers of the enabling provisions, rule 62(7) fell under the weight of the Wednesbury challenge. It was held that the Rule, which prevents the Asylum and Immigration Tribunal from considering an amendment or renewal of a ground of appeal advanced by a transitional appellant who sought to raise an obvious, arguable and potentially meritorious point of law, in the context of a possible breach of obligations under the Convention relating to the Status of Refugees 1951 (United Nations) or the European Convention on Human Rights 1950, failed to satisfy the Wednesbury test of rationality. It was not expected that the AIT would readily permit amendments, however, except where it was satisfied that the proposed amendment related to a point of law that was clearly arguable. Read the transcript

Events

ILPA and the British Institute for Human Rights are putting on a conference "Article 8 : Migrants and their rights to a family and private life" to take place on Friday 9 February 2007, Kings College, London.
Contact their training department via www.ilpa.org.uk or 0207 251 8383

HJT Training Comprehensive Four Day Course on LSC/Law Society Accreditation Exams 12-15 February 2007; Revision Day Saturday 17 February 2007. Book via www.hjt-training.co.uk or 0208 303 3013

"Free" Advice from Specialist Immigration Counsel

For the period 1 January 2007 to 30 March 2007, solicitors firms or advice agencies which have LSC Contracts (or are LSC Quality Mark holders) will be able to seek and obtain written advice from counsel on Immigration cases without having to first call the Garden Court Chambers Call Counsel advice line. Click here for more details

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