Issue 66 - 19th November 2007

Monday 19 November 2007

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LEGISLATION

UK Borders Act 2007 Royal Assent 30 October 2007
Sections 17 (Support for failed asylum-seekers) and 59-61 in force 30 October 2007

The British Nationality (General and Hong Kong) (Amendment) Regulations 2007 SI 2007/3137 in force 3 December 2007
The Regulations amend regulations 2 and 7 of, and Schedules 2, 4 and 5 to, the British Nationality (General) Regulations 2003 and Schedule 2 to the British Nationality (Hong Kong) Regulations 1986.

The British Nationality (British Overseas Territories) Regulations 2007 SI 2007/3139 in force 3 December 2007
The Regulations consolidate with amendments and revoke the British Nationality (Dependent Territories) Regulations 1982

The Asylum Support (Prescribed Period following Appeal) Regulations 2007 SI 2007/3102 in force 31 October 2007 at 14.00
Regulation 2 prescribes the period for the purposes of section 17(4) of the UK Borders Act 2007. During this period, a person's status as an asylum-seeker continues after his in-country appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") or under section 2 of the Special Immigration Appeals Commission Act 1997 ceases to be pending, for the purposes of Part 6 (and section 4) of the Immigration and Asylum Act 1999 (support and accommodation for asylum seekers) and Part 2 of the 2002 Act (accommodation centres).

The Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2007 SI 2007/3012 in force 19 November 2007
The Regulations amend the Accession (Immigration and Worker Authorisation) Regulations 2006 and the Accession (Immigration and Worker Registration) Regulations 2004.

The Immigration, Asylum and Nationality Act 2006 (Commencement No.7) Order 2007 SI 2007/3138 in force on 5 November 2007 and 31 December 2007.

The Order brings into force provisions of the Immigration, Asylum and Nationality Act 2006. The provisions specified in article 2 are brought into force on 5 November 2007 (in some cases for the purposes of making secondary legislation only) and those specified in article 3 are brought into force on 31 December 2007.

The Asylum (Procedures) Regulations 2007 SI 2007/3187 in force 1 December 2007
The Regulations together with amendments to the Immigration Rules (HC 395) attempt to implement parts of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member States for granting and withdrawing refugee status (OJ L326 13.12.2005 p 13)

The Asylum and Immigration Tribunal (Procedure) (Amendment No. 2) Rules 2007 SI 2007/3170 in force 1 December 2007
The Rules amend the Asylum and Immigration Tribunal (Procedure) Rules 2005 (S.I. 2005/230) to attempt to give effect to Article 10(2) of Council Directive 2005/85/EC of 1 December 2005 laying down minimum standards on procedures in Member States for granting and withdrawing refugee status (O.J. L326, 13/12/2005, p.13).

IMMIGRATION RULES
A Statement of changes in the Immigration Rules was laid on 13 November 2007 (HC40). These changes take effect on 30 November 2007. According to the Home Office
The Statement of Changes in Immigration Rules contains the following ten changes:-

  • - An amendment to the definition of "Employment" in the Interpretation Section of the rules to prevent student visitors from undertaking a paid or unpaid work placement as part of a course of study in the United Kingdom.
  • - An amendment to the child visitor rules which removes the link to the requirement in the visitor rules that prevents a visitor undertaking a course of study, a requirement which was introduced in the Statement of Changes in Immigration Rules laid on 3 April 2007 (Cm 7074).
  • - Amendments to the rules relating to Students, Child Visitors and Student Visitors to rename the DfES' Register of Education and Training Providers as the Register of Education and Training Providers.
  • - A change to the student rules which introduces a mandatory requirement for those intending to undertake postgraduate studies leading to a Doctorate or Masters degree by research, or a Taught Masters degree, in designated subjects, to obtain an Academic Technology Approval Scheme (ATAS) certificate from the Foreign and Commonwealth Office before applying for leave to enter or remain in the United Kingdom in order to pursue those studies. The relevant list of subjects is provided in Appendix 6 to the Rules.
  • - A change to the student rules to allow students who are enrolled on degree courses overseas to attend a publicy funded institution of higher education for a period of study and/or research.
  • - A change to the student rules to require those who intend to undertake a period of study and/or research in the UK for more than 6 months, as a part of their postgraduate overseas degree course, to obtain an ATAS certificate if the subject matter is akin to those covered by the ATAS.
  • - Amendments to the rules relating to the categories of "Re-sits of examinations" and "Writing up a thesis" as a result of the introduction of the ATAS.
  • - A consequential amendment to the rules relating to "Parent of a child at school", necessitated by the changes to the student requirements.
  • - An amendment to the rules relating to the Spouses and Children of Students to allow these dependants of Students' Unions Sabbatical Officers to seek entry to and remain in the United Kingdom in accordance with the rules.
  • - Correction of an omission in paragraph 326(2)(iv) of the Immigration Rules, relating to Registration with the Police.

CASES

Secretary of State for the Home Department v. AH (Sudan) & Ors [2007] UKHL 49 House of Lords

The Court of Appeal had erred in setting aside the decision of the Asylum and Immigration Tribunal. There had been no misdirection as to the application of the test in Januzi v Secretary of State [2006]UKHL 5. The Tribunal, in accordance with Januzi, found that it would not be unduly harsh or unreasonable for H to be returned to Sudan and relocate to Khartoum. The Court of Appeal found that the Tribunal had applied the wrong test for internal relocation and went on to apply what was said to be the correct test in its view. The House of Lords held that while the Tribunal had concluded that a comparison between conditions in an applicant's home country as a whole and those prevailing in the place of intended alternative relocation was integral to its assessment, the Court of Appeal had ruled that the starting point had to be conditions in the place of habitual residence. Januzi supported both bases of comparison.

MN (Rwanda) v Secretary of State for the Home Department [2007] EWCA Civ 1064 (30 October 2007) Court of Appeal
There was no error of law where an Immigration Judge had decided for reasons given that the risk of suicide by someone being deported could be managed so as to avoid a breach of Article 3 ECHR.

Bapio Action Ltd & Anor, R (on the application of) v Secretary of State for the Home Department & Anor [2007] EWCA Civ 1139 (09 November 2007)) Court of Appeal
There was not an obligation to consult persons affected before changing the Immigration Rules. However guidance issued by the Health Secretary which affected immigration law and practice by imposing restrictions not contained in the Immigration Rules was unlawful.

HA (WCPI, IMIK, KRG) Iraq CG [2007] UKAIT 00087
The risk to WCPI members in the KRG from IMIK or others. The evidence of the presence of the WCPI in the KRG and elsewhere in Iraq. The activities of the WCPI in the KRG.

IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088
Rabwah is not a safe haven for Ahmadis at risk of persecution elsewhere in Pakistan and it is not, without more, a place appropriate for internal relocation.

NS (Working holidaymaker; intention to work) India [2007] UKAIT 00090
An applicant for entry clearance as a working holidaymaker does have to demonstrate an intention to work in order to satisfy paragraph 95(vi) of HC395.

PM and Others (Kabul, Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089
Persons returning from the UK will not, without more, be at real risk on arrival at the airport or after arrival in Kabul. Without more, such persons are not at real risk of being suspected as insurgents by the authorities. There is no satisfactory evidence that questioning will give rise to a real risk of serious harm where a person is detained for questioning on account of being newly arrived in an area or on account of seeking accommodation or work in circumstances where his past has been mentioned to the authorities. It is unlikely to be unduly harsh to expect a person to relocate to Kabul if they are at real risk of harm outside Kabul. There is no satisfactory evidence that a person has been associated with Hizb-i-Islami will always be regarded as such and no longer evidence of a real risk to individuals who are alleged to have possible knowledge of the whereabouts of Gulbuddin Hekmatyar.

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