Issue 42 - 12th February 2007

Monday 12 February 2007

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(Click on case title to be transferred to a transcript of the Case)

News

Immigration and Nationality Directorate | Minister pledges fast but fair asylum system - New asylum teams for West London and the South East
Commission on International Religious Freedom reported that asylum seekers in the U.S are still being abused, the federal immigration authorities were critisised for rounding up asylum-seekers at the border, detaining them for months in prisonlike facilities and quickly dispatching them back to the countries they fled. In more than half of arrests, immigration officials did not advise asylum-seekers to ask for protection if they were afraid of returning home.

Cases

TA (Spouse, requirements for indefinite leave) Pakistan [2007] UKAIT 00011 (31 January 2007)

This case discusses the conflict between the two year probationary period as required for spouse applications and the impossibility of fulfilling two complete years, if entry clearance is granted for a two year period as it is the normal grant of leave. Inevitably the spouse will arrive in the UK and apply for ILR for less than the required 2 years as some, at least of the two year period will be used up by traveling, and/or applying for an extension for leave. Paragraph 13 of the Judgement provides:

"We shall return to that difficulty shortly. It is, however, important to note that the present structure of the Immigration Rules, and the practice in their application, creates difficulties for all non-British citizen spouses who seek indefinite leave to remain. That is because of the effect of the 2000 Order. Entry clearance is granted, abroad, for the appropriate period. Following the change of the probationary period to two years, that will normally mean that the entry clearance will be valid for two years. It is, however, in practical terms impossible for a person issued with such an entry clearance to obtain leave to enter the United Kingdom for a period of two years by using it.

Because of the 2000 Order, it appears that immigration officers no longer give any independent thought to the question of the period for which leave to enter should be granted by them in their discretion. On the holder's arrival in the United Kingdom, the only leave to enter available to the holder is therefore that which the Order gives him. But there is bound to be some interval between the grant of the entry clearance and the arrival in the United Kingdom; indeed the interval is likely to be of at least a few days because a person would normally want to make sure of having entry clearance before paying for travel tickets. Any such delay eats into the period of leave to enter, because under art. 4(3)(b) of the Order, the period of leave to enter will not be a period of the same length as that the entry clearance was valid, but will be a period beginning on arrival and ending with the validity of the entry clearance."

The Tribunal suggested one solution to the problem, namely that immigration officers should grant leave of an appropriate period in spouse cases, rather than relying on the slightly shorter period effected by the Order. Another possibility would be for spouse entry clearances to be valid for, say, 27 months, and, when issued, to be accompanied by a warning of the consequence of not using them within the first three months of their validity. The tribunal point out that that paragraph 287(i)(a)(i) remains in force, and that a person who cannot show that he already has two years leave to enter granted to him (by way of extension or otherwise as a spouse ) simply cannot meet the requirements of paragraph 287, and is bound to be refused. We are afraid that this may apply to a very large number of appeals by spouses against refusals of indefinite leave to remain.

SI (reported cases as evidence) Ethiopia [2007] UKAIT 00012 (06 February 2007)

Subject to one exception, country guidance cases continue to give authoritative guidance on the country guidance issue(s) identified for so long as they remain on the AIT website as CG cases.

However, the AIT Practice Directions make clear that a country guidance case may be departed from by an immigration judge, albeit only in strictly limited circumstances relating to fresh evidence.

Typically cases reported as country guidance serve a dual role: they contain summaries of background evidence; they also assess or evaluate that evidence. The obiter observations of Keene LJ in RG (Ethiopia) [2006] EWCA CIV 339 concerned reliance as evidence of the background situation in a country on adjudicator determinations (in the old two-tier system); these observations are not authority for the proposition that country guidance cases cannot be cited for the summary of background country evidence they often provide.

By contrast, cases which have in the past been reported for what they say about country conditions but were never designated as CG, whilst citable in certain circumstances for the summary of background country evidence they contain, are not precedents. An immigration judge who relies on such cases, not simply for the summary of facts they contain but for their assessment of the facts, will err in law unless that assessment accords with pre-existing country guidance.

As the AIT system of reported cases has evolved, it is now likely to be very rare indeed that a case will be reported for what it says about country conditions unless it is reported as a CG-designated case.

Bapio Action Ltd & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [2007] EWHC 199 (QB) (09 February 2007)

On 3 April 2006 new Immigration Rules came into force applying to foreign, ie non UK or other EEA postgraduate doctors and dentists. The object of the changes was to make it far more difficult for those doctors and dentists to obtain leave to enter or to remain in this country for the purposes of postgraduate training. The Claimants sought judicial review of the decision to introduce those new Immigration Rules and of the DH guidance. They contended that the decision to change the Immigration Rules was unlawful by reason of the failure of the Government to consult them before making that decision; that the advice given by the DH was unlawful on the ground that it misrepresented the Immigration Rules or was an illegitimate attempt to vary them; and that in making its decision to change the Immigration Rules the Home Office failed to comply with the requirements of section 71 of the Race Relations Act 1976. HHJ Stanley Burnton found that the Claimants had not established that the change in the Immigration Rules or the guidance given by the Department of Health was unlawful. Their third ground of challenge succeeded, ie. That the Secretary of State had failed to comply with his duty under section 71 of the Race Relations Act 1976, but that did not justify the quashing of the rule change. In any event, there was a subsequent Race Equality Impact Assessment the sufficiency of which had not been challenged. In these circumstances there will be a declaration that the Secretary of State for the Home Department failed to comply with his duty under section 71 of the Race Relations Act 1976 before deciding to make the changes in the Immigration Rules for Postgraduate Doctors and Dentists that took effect on 3 April 2006.

MO (Long residence rule-public interest proviso) Ghana [2007] UKAIT 00014

The Appellant had used a false identity whilst residing in the UK to enable him to work and avoid claiming public funds, notwithstanding that he had resided in the UK in excess of 14 years, the Immigration Judge found that it would be undesirable for him to be given indefinite leave to remain on the ground of long residence. The Appellant appealed, the Tribunal found, that the IJ's decision had been correct, the 14 year rule as set out in paragraph 276B(i)(b) and (ii) presupposes applicants with some history of illegal or unlawful residence, its inclusion of a public interest proviso at paragraph 276B(ii) makes clear that to succeed applicants must show their circumstances considered as a whole do not make it undesirable for them to be given indefinite leave to remain.

The following two cases have been added to the list of Country Guideline Determinations on the AIT website Asylum and Immigration Tribunal - Homepage

MK (Accession, effect on asylum related appeals) Bulgaria CG [2007] UKAIT 00004 (17 January 2007)

From 1 January 2007 nationals of Bulgaria and Romania became EEA nationals. This has major consequences for any pending asylum-related appeals by such persons. If their appeal relates to an immigration decision made before 1 January 2007 - and it has not been withdrawn - it must be allowed, since removal of EEA nationals is unlawful except where public policy, health or security reasons require otherwise. (The only exception to this arises in respect of deportation decisions governed by regulation 8(2) of the Accession (Immigration and Worker Authorisation) Regulations 2006.)

Reported decisions on the current AIT list of Country Guideline cases relating to countries which have since acceded to the EU no longer afford current guidance. It is appropriate, therefore, that they be removed. It may be in an unusual case raising issues for example of chain refoulement, that there will still be a role for country guidance cases dealing with member States of the EU, but clearly none of the existing cases dealing with the accession member States fall into that category.

SM & Ors (Entry Clearance, proportionality) Afghanistan CG [2007] UKAIT 00010 (02 January 2007)

There are no facilities for Afghan nationals to obtain entry clearances from Afghanistan or elsewhere. Where an appellant meets all the relevant requirements under the immigration rule and but for the absence of entry clearance he would qualify and the respondent cannot show that it is practicable for him to obtain entry clearance, the claim may succeed under Article 8 if the appellant shows, or (as in this case) the respondent conceded, that entry clearance cannot in practice be obtained because of the lack of accessible facilities.

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