Issue 69 - 10th December 2007

Monday 10 December 2007

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Legislation

The Special Immigration Appeals Commission (Procedure)(Amendment No. 2) Rules 2007, SI 2007/3370 came into force on 1.12.2007. The amendments give effect to the EC 'Procedures Directive' (Council Directive 2005/85/EC) in relation to service of decisions and interpreters. They also alter the time limits for applying for permission to appeal from SIAC to the Court of Appeal

Strasbourg

Liu and Liu v Russia (2007) (App no. 42086/05) - decision to remove / deport a Chinese citizen, married to a Russian woman with whom he had 2 Russian citizen children breached article 8 because the decision was 'not in accordance with the law'. The procedures by which the decisions were taken failed to provide sufficient protection against arbitrary interference, in particular, by failing to enable the allegation that he threatened national security to be scrutinized in adversarial proceedings in which the evidence relied on by the authorities was placed before the court.

Domestic case law

AB (Jamaica) v SSHD [2007] EWCA Civ 1302 as to the approach that the tribunal / court is required to take when assessing the reasonableness (both in the context of article 8 and DP3/96) of expecting a British citizen husband to accompany his spouse upon her removal to Jamaica. The husband was said to be 'in substance, albeit not in form,...a party to the proceedings' in the wife's appeal to the AIT.

YH(Funding - regulation 8 - excluding costs) Sudan [2007] UKAIT 00095. Regulations 8(2) and 8(2B) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 enable the tribunal 'in special circumstances' to make a section 103D funding order in respect of counsel's fees only or the supplier's costs only. The failure by the appellant's solicitor to file and serve documents relevant to the appellant's appeal was, in the circumstances of the case, such 'poor case handling or preparation' as to amount to 'special circumstances' so that the s. 103D order would be limited to counsel's fees and would exclude the solicitor's costs.

R(Kanwal) v SSHD [2007] EWHC 2803 (Admin), Dobbs J. An application for leave to remain, made in time but using an old application form was invalid and was not rectified by later submitting the correct form. The correct form having been submitted after the leave expired, the application for leave to remain was properly treated by the Home Office as out of time. (No available link).

Home Office Consultation

The Home Office has published a consultation paper in relation to its intention to impose a competence in the English language requirement on those seeking leave to enter as spouses. The consultation closes 27.2.2008

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