Issue 59 - 9th July 2007

Monday 9 July 2007

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LEGISLATION

Criminal Justice and Immigration Bill

Part 11 (clauses 115-122) of the Bill provides for a new 'special immigration status'. It will be seen that this new status is outside of the regimes of both: (1) 'leave' to enter or remain; (2) the various forms of temporary admission under Schedules 2-3 Immigration Act 1971.

The new status applies to those persons who are 'designated' by the Secretary of State. The Secretary of State may designate persons if they are 'foreign criminals' who are liable to deportation but who cannot be removed for human rights reasons (cl 115(1)-(3)) or who are members of the family of such a person.

'Foreign criminals' are those who are not British citizens and who:

  • fall within Art 33(2) Refugee Convention as applied by s72 Nationality, Asylum and Immigration Act 2002 (convicted of serious crime and imprisonment for two years); or
  • has been convicted of a specific offence under s72(4) 2002 Act; or
  • are excluded from the Refugee Convention under Art 1F (exclusion for acts contrary to purposes/principles of UN, serious non-political crimes, humanitarian crimes)

Such persons do not have leave or temporary admission (cl 117(1), (4)). They are excluded from welfare benefits as they are deemed 'subject to immigration control' (see cl117(2)) and they and their dependants shall instead be entitled, if they so qualify, to asylum support (as if they were asylum-seekers). The asylum support available to them is, however, modified by clauses 119-120. For example, designated persons are not to be provided with cash 'unless the Secretary of State thinks it appropriate because of exceptional circumstances' (see cl 119(4)).

Conditions may be imposed on designated persons relating to residence, employment or occupation, reporting (cl 118(1)(2)). Designated persons may also be subject to electronic monitoring (cl 118(3)).

The effect of all the above is to reverse the decision in the 'Afghan Hi-Jack' case decided on 10 May 2006 per Sullivan J allowing the claimant's application for judicial review (R (S &Others) [2006] EWHC 1111 (Admin); subsequently upheld by the Court of Appeal on 4 August 2006, SSHD -v- S & Others [2006] EWCA Civ 1157, see now reported inter alia in INLR). Indeed the then Home Secretary had announced that he would legislate in order to reverse the effect of the decision.

The finding of the Court in the Afghan Hi-jack case was that the Secretary of State's conduct in refusing to grant the claimants leave to enter the UK was unlawful inter alia on the grounds that it was inconsistent with the scheme of the Immigration Act 1971 - the newly devised policy purporting to allow SSHD to maintain a successful applicant on temporary admission was consequently unlawful (at [74]-[83], decision of Sullivan J).

The decision in the Afghan case was also found to constitute a violation of the claimants rights to respect for private and family life under Article 8 ECHR rights (while denied leave and maintained on temporary admission, the claimants could not work, attend university or travel; in addition they had to report and had residence conditions etc). The Secretary of State had conceded that the denial of leave amounted to an interference with Article 8 interests and the learned Judge found that, given that the policy gave ministers an unfettered administrative discretion, the interference was unjustified because it was not 'in accordance with the law' for the purposes of Article 8(2) ECHR)(at [108]-[113], decision of Sullivan J).

The new Bill also contains provisions concerning the early removal of certain prisoners from the United Kingdom (see clauses 15, 19-20).

For the Criminal Justice and Immigration Bill, click here

CASE-LAW

RK (Algeria) -v- SSHD [2007] Extempore, Unreported, 27 June 2007 - effect of delay in IAT/AIT promulgating determination

The Secretary of State appealed to the Court of Appeal against a decision of the IAT to the effect that the applicant, an Algerian army officer and deserter, would face a risk pursuant to Art 3 ECHR if returned. The basis of the appeal was that there was a delay of nearly two and a half years between the hearing and the promulgation of the determination.

The Court of Appeal held that, in order to impugn the decision, the Secretary of State had to show a link between the delay and safety of the determination. SSHD could not point to any lack of safety of the actual determination: the applicant's credit was not in issue and there was no submission that the Tribunal had not dealt with the submissions of the SSHD. Therefore, the appeal failed. Note that similar principles may apply if it is the applicant who is appealing on grounds of delay.
For RK Algeria, click here

R (ZK (Afghanistan), YM (Afghanistan) -v- SSHD [2007] EWCA Civ 615 - 'Rashid' type situation, Rashid distinguished
In this case, the Court of Appeal distinguished the present circumstances from the facts in Rashid -v- SSHD [2005] EWCA Civ 744, [2005] Imm AR 608. Z had submitted that the SSHD had failed to apply his own policy on ELR for four years and, had it been granted, it would have led to indefinite leave. The Court held that if a claim based on the later discovery of a legitimate expectation that was not previously known was to have any chance of success, it needed to be supported by coherent evidence - that was lacking in this case. The Court pointed to the cumulative errors that had arisen in Rashid in distinguishing that case.

The Court emphasized (at para [26]): "In Rashid, the policy relied on was a policy under which asylum, as distinct from leave to remain, should have been granted. Serious errors of administration occurred, amounting, in the words of Dyson LJ to "flagrant and prolonged incompetence". In both cases, fresh claims were also made but were interpreted by the Court as seeking, in effect, to raise issues long since settled and they were also rejected.
For ZK, click here

MA (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT 00059
In this case, the AIT has supplements and amends the country guidance relating to Eritrea given in the following earlier country guidance cases: IN Eritrea CG [2005] UKIAT 00106, KA Eritrea CG UKAIT 00165, AH Eritrea CG [2006] UKAIT 00078 and WA Eritrea CG [2006] UKAIT.

The Tribunal held that a person who is reasonably likely to have left Eritrea illegally will, in general, be at real risk on return if he or she is of draft age, even if the evidence shows that they have completed national service. They are at risk of being regarded as a deserter and subjected to persecutory punishment. However, a person who does not leave illegally will not in general be at risk even if of draft age and whether or not the Eritrean authorities know that they have claimed asylum in the UK.
For MA, click here

FM (Sudan CG) [2007] UKAIT 00060 - risk of female genital mutilation in Sudan
In general there is no real risk of a woman being subjected to FGM at the instigation of persons who are not family members. As a general matter, the risk of FGM for an unmarried woman will depend on the attitude of her family, particularly her parents. A woman from an educated/high social status family is less likely to experience family pressure for FGM - but such a background will not automatically exclude such pressure. The risk of FGM will depend on a variety of factors including age, vulnerability of woman concerned and attitude of her parents an the location and 'reach' of the extended family. If a woman's parents are against FGM, they will normally be able to ensure that she does not marry a man who (or whose family) is in favour of it.

Significant action is being taken in Sudan (by Government and NGOs to combat the practice of FGM in all forms. Legal sanctions are, however, unlikely to be applied where a woman has been subjected to FGM by her family.
For FM, click here

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