Issue 76 - 18th February 2008

Monday 18 February 2008

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News

A new report released at the Church of England's General Synod, by The Children's Society last week has given a snapshot of the stark reality for child asylum seekers and refugees living in Britain. More info see also refugee council news

Visitors to Europe will face biometric screening and automated security checks under proposals for a shake-up of EU border controls. Under plans to strengthen checks at European borders laid out by the European Commission, international travellers would also have their stay logged and monitored by an electronic system, which could become operational by 2015. More info

The BIA's immigration enquiry bureau has reported experiencing problems which mean that customers may have difficulties getting through to them. More info

Cases

In ECJ Case C-33/07 Ministry of Administration and Home Affairs - Directorate General for Passports, Bucharest v Gheorghe Jipa, Advocate General Mazák has given his opinion (14 February 2008) to the effect that the Romanian authorities' order - imposing a restriction on the applicant's freedom of movement abroad for a period of up to three years following his repatriation from Belgium - should be precluded by Article 18(1) EC and Article 4 of Directive 2004/38/EC and that in the absence of a specific finding by a Member State in relation to one of its own nationals, adopted in compliance with the principle of proportionality and based exclusively on the personal conduct of the individual concerned, that the exercise by him of his right pursuant to Article 18(1) EC and Article 4 of Directive 2004/38 to leave his own Member State to travel to another Member State may pose a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society, the Member State of origin may not impose, on grounds of 'public policy' or 'public security' as provided by Article 27 of that directive, restrictions on the freedom of movement of that person. And that failure by a Member State to examine the personal conduct of a person when restricting, on grounds of public policy or public security, his right to move and reside freely in the territory of the Member States invalidates any justification of the restriction in question.

Aissaoui v SSHD [2008] EWCA Civ 37 (7 February 2008): an immigration judge had erred in determining that an overstayer had deliberately tried to avoid detection, by engaging in employment under the name and national insurance number of another person, so that the SSHD was entitled to refuse the overstayer's application for leave to remain on the grounds of 14 years' long residence (under HC 395, para 276B(i)(b)&(ii)) on public interest grounds. The appellant asserted that he had used a false identity to obtain work and thus survive, rather than to evade detection. The Court allowed his appeal and remitted it for reconsideration afresh. Hooper LJ held that MO (Long residence rule-public interest proviso) Ghana [2007] UKAIT 14 should be treated with caution and that if applied too literally MO would automatically exclude in the public interest from the long residence rule many who, absent other factors, are intended to have the benefit of that rule. Rimmer and Sedley LJJ agreed.

RT (medical reports, causation of scarring) Sri Lanka [2008] UKAIT 00009 (7 February 2008): the Tribunal held that where a medical report is tendered in support of a claim that injuries or scarring were caused by actors of persecution or serious harm, close attention should be paid to the guidance set out by the Court of Appeal in SA (Somalia) v SSHD [2006] EWCA Civ 1302. Where the doctor makes findings that there is a degree of consistency between the injuries/scarring and the appellant's claimed causes which admit of there being other possible causes (whether many, few or unusually few), it is of particular importance that the report specifically examines those to gauge how likely they are, bearing in mind what is known about the individual's life history and experiences.

CT (Rule 60(i), student entry clearance?) Cameroon [2008] UKAIT 00010 (12 February 2008): the Tribunal held that a person who entered the United Kingdom with entry clearance as a short term student prior to 1 September 2007, although subject to a condition prohibiting work, was admitted to the UK in possession of a valid entry clearance in accordance with paragraph 57 of HC 395 and as a student not as a visitor. The IDIs make it plain that at the time the appellant was granted entry clearance a short-term student who did not wish to take part-time employment would be granted leave subject to visitor conditions provided that he was able to comply with the requirements of para 57 of HC 395. In these circumstances the fact that the appellant's entry clearance contained the words "no work or recourse to public funds" is not an indication that he had not been granted entry clearance at a short-term student in accordance with paragraph 57 HC 395.

Events

Mark Symes, Patrick Lewis and Andrew Eaton from the immigration team at Garden Court Chambers will be doing a training course, largely paid for by the Legal Services Commission, on 29 February 2008 at the LSC Offices in Leeds on: Deportation Update; EU Law Update; Immigration Rules Update; and Asylum Update - Case Law and EU Minimum Standards "Procedures" Directive. For more information and booking forms More info

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