Issue 51 - 30th April 2007

Monday 30 April 2007

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NEWS

A new "Australia-style points" based Migration system will begin in 2008.
On 18th April 2007 Liam Byrne set out the timetable for the new system designed to limit the number of newcomers to the UK. There will be a tier system under the rules. Non-EU workers will be placed in five categories ranging from the highly skilled to the unskilled.

The Schedule

Tier 1 of the system which affects highly skilled workers include scientists and entrepreneurs and launches at the beginning of 2008

Tier 2 affecting workers with a job offer

Tier 4 affecting students launches at the beginning of 2009

Tier 5 young people and temporary workers both launch in the third quarter of 2008

More info www.homeoffice.gov.uk

Migrants swell the population of Britain by 185,000. 2005 figures show net gain out of 565,000 arrivals: Poland, India and China are main countries of origin. See Guardian April 20th 2007.

CASES

EUROPE

Gebremedhin [Gaberamadhien] v France (Application No: 25389/05, 26.04.2007), the European Court of Human Rights held that given the importance which the Court attached to Article 3 of the Convention and the irreversible nature of the harm that might occur if the risk of torture or ill treatment materialised, it was a requirement of Article 13 that the persons concerned should have access to a remedy with automatic suspensive effect. As the applicant was in the "waiting area", it was held that he had no such remedy. The Court held that there had been a violation of Article 13 taken in conjunction with Article 3. See www.echr.coe.int (press release)

Ozturk and Payir and Akyuz v SSHD (case c-294/06) referred by CA on 28.06.06 A case on whether Turkish students benefit from the worker provision under the EC Turkish Association Agreement heard by ECJ on Thursday 26th April 2007

COURT OF APPEAL

Ahmed Iram Ishtiaq v SSHD [2007] EWCA Civ 386 [26.4.20007]

This case was concerned with the interpretation of para 289A (iv) of HC 395. The immigration rule was concerned with the requirements for indefinite leave to remain in the UK as a victim of domestic violence and in particular, i) the evidential requirements to establish domestic violence in an individual case and ii) whether the AIT's reasoning in the case of JL is correct.

The Court of Appeal held that the true interpretation of para 289 A (iv) is to specify what an applicant has to prove in their case to get indefinite leave to remain by producing relevant and cogent evidence during probationary period ie that the relationship has been caused to breakdown permanently as a result of domestic violence.

The Court rejected the argument that the SSHD had power to prescribe the nature and form of evidence to be produced to a caseworker by an applicant seeking to establish that the relationship had permanently broken down as a result of domestic violence. The Court held that in view of the purpose of para 289(A) and since sub para (iv) does not clearly provide that an applicant may only prove the necessary facts by producing evidence of the kind prescribed by SSHD in instructions to caseworkers, the Court held that the SSHD's analysis of the rule was wrong.

Paragraph 289 (iv) gives a caseworker a discretion to decide what evidence to require an appellant to produce in an individual case. In exercising that discretion it would expected that a caseworker usually to start by applying the guidance given in section 4 of Ch 8 of IDI's But if the applicant is unable to produce evidence in accordance with that guidance , a caseworker should seek an explanation for his or her inability to do so. If the applicant produces a reasonable explanation for her inability to produce such evidence, then the caseworker should give the applicant to produce other relevant evidence that she wishes to produce.

The Court held that given their finding that para 289(iv) did not have the meaning that the SSHD sought to rely on and the decision in JL was found to be correct.

IA (Somalia) v Secretary of State for the Home Department (2007), CA (Civ Div) 20.4.2007 (unreported elsewhere)

An asylum appeal was remitted for a rehearing in circumstances where it could not be said with confidence that an adjudicator would have arrived at the same conclusion as he had if he had taken a relevant country guidance case into account, and where that failure to take it into account amounted to a material error of law.

MT (Zimbabwe) v SSHD for the Home Department [2007] CA (civ division) 25/04/2007 Extempore (unreported elsewhere)

An Immigration Tribunal had erred in overturning an adjudicator's decision that returning an individual to Zimbabwe would be a disproportionate interference in her family life under Article 8 ECHR as that the fact that she had reached a conclusion that might seem unusually generous to another tribunal did not mean that she had made an error of law.

AG (ERITREA) v SSHD (2007), 25.4.2007, C5/06/1726

An interim Judgment given by the Court who held that a test case is needed to work out how to apply what House of Lords has said in Huang and Kashmiri to cases where proportionality is in issue.

HIGH COURT

R (ON THE APPLICATION OF AM) V SSHD [2007] QBD (Admin) (Hodge J) 18.4.2007 (unreported elsewhere)

A failed Iraqi asylum seeker's detention for a period of approximately nine months whilst awaiting deportation was arguably unlawful because of it's length, the impossibility during that period of his removal to southern Iraq, and the unlikelihood of absconding.

REPORTS

IRAQ: Unjust and Unfair: The death penalty in Iraq (19/04/2007) www.amnesty.org

AFGHANISTAN: Civilians under threat (19/04/2007) www.amnesty.org

EVENTS

2nd May 2007 - "Terrorism" Lists versus rights to self determination and democracy
6.30pm House of Lords Committee room 3, Westminister, SW1

19th and 20th May 2007 - Rights of Refugees under International law - Professor Hathaway at Refugee Studies Centre at University of Oxford.

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