Issue 75 - 11th February 2008

Monday 11 February 2008

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News

New immigration rules appear in HC 321, many effective from 29 February 2008. They include new provisions regarding forms and procedures, extensions of stay for Tier 1 (General) Migrants (including restricting access to employment for Doctors in Training) and entry for their partners and children, and settlement for work permit holders. Illegal entrants will be barred from accessing leave to remain in specified circumstances. More info

With effect from 18 March 2008, 38 healthcare-related occupations will be removed from the national shortage occupation list for work permits. More info

Legislation

The British Citizenship (Designated Service) (Amendment) Order 2008 No. 135 adds service for the Welsh Assembly Government to those forms of service that, for the purposes of section 2 of the British Nationality Act 1981, confer citizenship on a person born outside the United Kingdom and the qualifying territories where at the time of birth his father or mother is a British citizen and is serving outside those locations. More info

The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2008 specifies the maximum penalty which may be imposed by the Secretary of State under section 15(2) of the Immigration, Asylum and Nationality Act 2006 on an employer who acts contrary to that section in the employment of an adult subject to immigration control: £10,000. More info

The Immigration and Nationality (Fees) (Amendment) Order 2008 amends the Immigration and Nationality (Fees) Order 2007, S.I. 2007/807, ("the 2007 Order") so as to require applications for sponsorship licences to be accompanied by a specified fee. A person may apply to the Secretary of State to be licensed as a sponsor in order that they may be issued with certificates of sponsorship in respect of applicants, or potential applicants, who are applying for leave to enter or remain in the United Kingdom, and the Order addresses "A" and "B" rated sponsors, and the "action plan" that lower rated sponsors must comply with to improve their rating. More info

Cases

The ECJ in Payir and Ozturk v Secretary of State for the Home Department (Case C-294/06; 24 January 2008) found that the fact that a Turkish national was granted leave to enter the territory of a Member State as an au pair or student cannot deprive him of the status of 'worker' and prevent him from being regarded as 'duly registered as belonging to the labour force' of that Member State within the meaning of Article 6(1) of Decision No 1/80. Accordingly, mode of entry in those capacities will not prevent that national from being able to rely on that provision for the purposes of obtaining renewed permission to work and a corollary right of residence.

In A & Ors, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 142 (Admin) (21 January 2008) the Administrative Court found that ongoing detention of several Algerian nationals pending their removal had become unlawful, partly because of a lack of progress in negotiating their return with the Algerian authorities.

InSK, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 98 (Admin) (25 January 2008) Munby J in the Administrative Court conducted a melancholy analysis of the Secretary of State's detention file - he wrote that "the picture which emerges is deeply disturbing, indeed profoundly shocking. These are matters going to the liberty of the subject. They are matters of the first importance. This makes the serial shortcomings of the Home Office all the more concerning. I trust that no judge will ever again be faced with such a state of affairs."

In MN (India) v Entry Clearance Officer & Secretary for State for the Home Department (as interested party) [2008] EWCA Civ 38 (5 February 2008) the Court of Appeal considered the interrelationship between the immigration rules and ECHR Article 8 in the context of adoption of a child resident abroad. They found that the untried possibility of making an application under paragraph 316A of the immigration rules (for limited leave to enter for the purpose of being adopted) was relevant to proportionality, because it provided at least one route to achieving entry to the United Kingdom under the Immigration Rules and was a route available to the appellant.

The ECtHR considered the detention of asylum seekers in Saadi v United Kingdom in the Grand Chamber (Application no. 13229/03; 29 January 2008). Given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum-seekers, it was not incompatible with Article 5(1)(f) of the Convention to detain an individual for seven days in suitable conditions to enable a claim to asylum to be processed. They upheld the view of the courts below that a delay of 76 hours in providing reasons for detention was not compatible with the requirement of the provision that such reasons should be given "promptly" More info

Events

Steve Symonds and Laura Dubinsky will be giving training on The UK Borders Act for ILPA on Tuesday 19 February 2008, see www.ilpa.org.uk for details.

Fran Webber will be giving an Asylum Update for ILPA at Garden Court Chambers on Wednesday 27 February 2008, and Nicola Rogers will be updating on European Law on Thursday 28 February 2008 at the same location.
All three courses run from 4-7.15pm.

On Friday 14 March HJT Training are holding a Conference on judicial review: see http://www.hjt-training.co.uk/coursedates.aspx

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