Issue 77 - 25th February 2008

Monday 25 February 2008

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Legislation Update

2008 No. 310 (C. 10) The Immigration, Asylum and Nationality Act 2006 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008

The following provisions of the Immigration, Asylum and Nationality Act 2006 come into force on 29th February 2008 --

  • sections 15 to 18 to the extent to which they are not already in force (penalty for employment of adult subject to immigration control);
  • sections 21 and 22 (offence of employing adult subject to immigration control);
  • section 24 (employment of adult subject to immigration control: temporary admission);
  • in Schedule 3, the entries relating to section 31A of the Immigration Act 1971.

The following provisions of the 2006 Act come in to force on 1st April 2008 --

(a) subject to article 4, section 4 (entry clearance);
(b) section 33 (freight information: police powers) for the purposes of making an order under subsection (5)(a); and
(c) section 47 (removal: person with statutorily extended leave).

Notwithstanding the commencement of section 4 of the 2006 Act and the substitution of section 88A of the 2002 Act and section 23 of the 1999 Act, section 4(1) (appeals: entry clearance) and section 4(2) of the 2006 Act (monitoring refusals of entry clearance) shall have effect only so far as they relate to applications of a kind identified in immigration rules as requiring to be considered under a "Points Based System".

Case Law Update

City of Westminster v IC (By His Litigation Friend the Official Solicitor) and KC and NNC [2007] EWHC 3096 (Fam) 21/12/2007. Judgment available on Lawtel.

The vulnerable adult lacked the capacity to marry, the capacity to consent to sexual relations, and the capacity to consent to circumcision; he had been domiciled in England at the date of his arranged marriage, and while the marriage had, probably, taken place in Bangladesh, it was expected that married life would be lived in England. Although the vulnerable adult had been lawfully married under Sharia law and Bangladeshi law, the marriage would not be recognised in England, because he demonstrably had no mental capacity to consent to the contract of marriage and it would be repugnant to public policy in such circumstances to recognise a ceremony of marriage as valid. The court had no power to regulate the domicile of the vulnerable adult, which was dependent upon that of his father, but did have the power to inhibit removal of the vulnerable adult from the jurisdiction, although it should be extremely cautious before thus inhibiting the enjoyment of family life. Comity was a powerful consideration, but not one that required a court to rein in all further enquiries in appropriate cases.

Secretary of State for the Home Department v AF [2008] EWCA Civ 117 (22 February 2008)

Two issues of importance arose in relation to hearings under section 3(10) and 10(4) of the Prevention of Terrorism Act 2005 (PTA) namely:

a) whether a judge who decides issues arising on a hearing under section 3(10) of the PTA adversely to a respondent (or to the SSHD) is disqualified from adjudicating in subsequent proceedings under the PTA to which the respondent is a party; and
b) the status of findings made by a judge as a result of a hearing under section 3(10) of the PTA in subsequent proceedings under the PTA between the same parties.

The Devaseelan guidelines cannot simply be transferred wholesale to the different context of a hearing under section 3(10) of the PTA. The findings in an earlier decision of a judge under section 3(10) should be taken into account and that there may be circumstances in which a judge might conclude that justice did not require the reopening of conclusions reached earlier. However, the judge conducting a hearing under section 3(10) does not make findings of fact in the way that an adjudicator does (or did) on an asylum claim or a human rights claim. One cannot simply say that there has been no change of circumstances and that a judge conducting a section 3(10) in respect of a second control order can properly be regarded as bound by such conclusions as were reached at an earlier hearing.

KK (A Child), Re [2008] EWCA Civ 103 (21 February 2008)

This case involved a family dispute concerning the identity and age of a young Ugandan woman, currently being provided accommodation by Lambeth local authority. In family proceedings a court has made a direction under s.37 Children Act 1989 that a local authority should investigate the circumstances of a person claiming to be a child. In response to the direction, the local authority have informed the court of their conclusion, following investigation, that the person is not a child and that therefore they owed no duty to accommodate the young woman. The issue before the Court of Appeal concerned whether in such circumstances the court, could direct that a fact-finding hearing take place in order that it may determine the issue between the person and the local authority as to whether she was a child. The Court held that local authorities cannot be the arbiters of whether courts have jurisdiction to make directions to them and that the Court direction was appropriate.

G (A Child), Re [2008] EWCA Civ 105 (21 February 2008)

This case discusses certain arrangements for taking a child put of the UK jurisdiction for adoption in the US

AM (Cameroon), R (on the application of) v Asylum and Immigration Tribunal & Anor [2008] EWCA Civ 100 (20 February 2008)

This important judgment deals with a further issue arising in this case in which judgment was given in ...

The issue left undetermined concerned the application for judicial review lodged for the applicant before any decision was promulgated by the immigration judge. The claim form requested an order "staying the hearing and determination of the appeal until she had been given a reasonable opportunity to stabilize her medical condition and attend to give evidence", and requested that "this matter to be considered urgently and in any event no later than 4 p.m. on Wednesday 24 August 2005". At the stage when the claim form was issued, and prior to any final decision, the section 103A procedure was not open to AM, and thus the only means of seeking to stop the immigration judge dealing with the matter if he had unfairly refused the admission of evidence or an adjournment or was acting so unfairly as to disqualify him from sitting on the appeal, was by virtue of judicial review. In fact the claim for a stay was not placed before a judge until 14 September by which time the immigration judge's decision had been promulgated and a stay was refused by Hodge J on that basis. Beatson J. directed an oral hearing, noted that there was no section 103A application before him but if such application was made it should be listed and heard together with the judicial review application. That direction was not complied with.

Held:
(i) The Court considered that the error in this case the type of mistake made by the court in this instance was of the kind that could give rise to very serious consequences and could thus give rise to the exercise of the Taylor v Lawrence [2003] QB 528 jurisdiction - which allows, in exceptional circumstances, a judgment, although final and perfected, to be withdrawn by the court that made it

(ii) the Court was all persuaded that a judge would actually have been wrong in this case to use the section 103A procedure and simply send the matter back for reconsideration.. First, the section 103A procedure itself is not well-suited to resolving disputes arising on evidence not before the tribunal (see CPR 54.33(3)). Second, to send the matter back for reconsideration by one immigration judge into the conduct of another of the kind alleged in this case, does not seem to us appropriate. The review exercise required is more properly conducted by the High Court in its supervisory jurisdiction. Third, section 103A only gives one opportunity to challenge an appeal decision. If AM was right in her allegations, she had never had a fair hearing at all. It would be quite wrong that an unfair hearing, and one that possibly should never have taken place before the particular immigration judge, should count as a hearing at all so as to bring into play the guillotine that section 103A imposes. AM in fact brought her challenge before the decision of the immigration judge had been promulgated. She was saying that the immigration judge should never have decided her case without evidence from her two witnesses and herself and if she was right in the charges she made, she was entitled to have relief which brought about that result, i.e. wiped that immigration judge's rulings and hearing from the slate.

(iii) On the issues in contention concerning the IJ's conduct at the hearing, the Court made the following comments:

  • To suggest that the appeal could be dealt with in AM's absence and without the evidence she wished to call without the appellant being prejudiced, when the issue was her credibility, is not a view any reasonable judge acting fairly could take.
  • Not to take any heed of statements even though supplied late when AM had not given evidence herself is indicative of an unbalanced view towards AM's appeal.
  • Not to have adjourned at least to September, which was all that was asked, was unfair. There was no request for an indefinite adjournment
  • What appears to have happened is that the immigration judge felt that his authority was being challenged; and he also thought, at least initially, that someone was attempting to pull the wool over his eyes as to AM's ill- health. He determined that those representing AM and indeed AM herself should be shown who was in control; why, otherwise, reserve the case to himself? Clearly there was some form of falling out between those representing AM and the judge and it is clear that he misjudged the seriousness of AM's condition, at least initially. That led him to act in a way which gave the appearance of lack of impartiality. AM's advisers may also, as a result, have been themselves led to act unwisely. We are doubtful, for example, whether to appear and request an adjournment and then pointedly take no further part rather than struggle as best one could was wise. But on any view it seems to us that AM has simply not had any fair hearing of her appeal through no fault of her own, and the real cause of that having happened was the conduct of the immigration judge.

MB (Somalia) v Entry Clearance Officer [2008] EWCA Civ 102 (20 February 2008)

The Court upheld a tribunal decision refusing entry to the elderly mother of a British citizen. The applicant mother was separated but not widowed. Her circumstances were not therefore provided for in HC 395 para 317 which makes provision for parents who are married, remarried and widowed, but not divorced/separated. The Court declined to interpret the Rule to make an accommodation for separated parents or to strike down the rule as arbitrary or discriminatory. The Court did express its disquiet concerning the rule and encouraged the Secretary of State to review it.

RS and SS (Exclusion of appellant from hearing) Pakistan [2008] UKAIT 00012 (20 February 2008)

The general rule that an appellant who is in the United Kingdom cannot be excluded from the hearing of his own appeal does not mean that he cannot, by himself or by his representative, consent to a requirement that he be absent from part of it. Evidence may gain in credibility from the removal of a possibility that a later witness has heard the evidence that an earlier witness gave. If two appeals are combined it is proper for an Immigration Judge to ask, and proper for a representative to agree, that one appellant remain outside while the other gives evidence. An alternative course of action is to hear the appeals successively.

Update Concerning Immigration Arrangements

Home Office BIA - New Application Forms are issued as from Feb 29 2008
New forms comprise:
Extension of stay or further leave to remain
BUS - business person, sole representative, retired person of independent means, investor, innovator
FLR(IGS) - International Graduates Scheme
FLR(M) - husband, wife, civil partner, or unmarried or same-sex partner of a permanent resident
FLR(S) - students, student nurse, prospective student or sabbatical officer, exam resits, thesis writing
FLR(FT:WISS) - Fresh Talent: Working in Scotland Scheme
FLR(IED) - work permit holders
FLR(O) - other categories
Settlement, permanent residence or indefinite leave to remain
BUS - business person, sole representative, retired person of independent means, investor, innovator
SET(DV) - victim of domestic violence
SET(F) - family member of a permanent resident
SET(M) - husband, wife, civil partner, or unmarried or same-sex partner of a permanent resident
SET(O) - other categories
Other
NTLTOC - transfer of residence permit from an old to a new passport
COA - certificate of approval for marriage or civil partnership in the United Kingdom.

Consultation on Court rules for Forced Marriage

The Ministry of Justice has launched a consultation on draft court rules for the Forced Marriage (Civil Protection) Act 2007. The consultation closes on 24 April 2008.
More information, including a copy of the consultation questionnaire, can be found on the Ministry of Justice's website at: http://www.justice.gov.uk/publications/cp0208.htm

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