Issue 78 - 3th March 2008

Monday 3 March 2008

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Points system

The new points system was launched on 29 February 2008. According to the BIA website, the key elements of the system are:

  • it combines more than 80 pre-existing work and study routes in to the United Kingdom into five tiers (highly skilled individuals; skilled workers with a job offer; low skilled workers in limited numbers to fill temporary labour shortages; students; and youth mobility and temporary workers);
  • points are awarded on workers' skills to reflect aptitude, experience, age and also the demand for those skills any given sector, to allow the United Kingdom to respond flexibly to changes in the labour market;
  • it is a fair, transparent and objective system that will enable potential migrants to assess their likelihood of making a successful application and should help to reduce the number of failed applications.
  • The system is being introduced in phases, beginning with Tier 1. A small number of general applications can be made now, but most will wait until later in the year, and the student PBS will start next year. Employers and institutions must apply for a licence to sponsor and bring migrants in to the United Kingdom, and meet a number of sponsorship requirements.

Subsidiary protection

UNHCR has produced a paper on the application of Art 15(c): Subsidiary protection under the EC Qualification Directive for people threatened by indiscriminate violence (January 2008), citing the first-instance unreported AIT case of Lukman Hammed Mohamed (AA/14710/2006, 13 September 2007) in support of their argument that 'individual' threat should not lead to a higher threshold or heavier burden of proof, and should not remove protection from those forming part of a larger segment of the population affected by the same risks.

Legislation

The UK Borders Act 2007 (Commencement No. 2 and Transitional Provisions) Order 2008, SI 2008/309, brings into force:

  • ss 27 (employment: arrest); and 28 (employment: search for personnel records), on 29 February 2008 (subject to transitional provisions);
  • s 25 (forfeiture of detained property) subject to transitional provisions; 44 to 47 (search for evidence of nationality and seizure of nationality documents), on 31 March 2008;
  • ss 48 to 56 (Border and Immigration Inspectorate: appointment, office, reports, plans etc (ss 51-53 for the purposes of making orders; and the Schedule (repeals) to the extent to which it is not already in force, on 1 April 2008.

The Immigration and Police (Passenger, Crew and Service Information) Order 2008, SI 2008/5 came into force on 1 March 2008. The Order makes provision for the acquisition of data in respect of passengers, crew and air, sea and rail services entering and leaving the United Kingdom. Some of its provisions are the subject of a request for elucidation by the Joint Committee on Statutory Instruments, in its Tenth report published on 25 February 2008.

Cases

Saadi v. Italy (Application no. 37201/06), ECtHR: The application concerned the possible deportation of the applicant to Tunisia, where he claims to have been sentenced in 2005, in his absence, to 20 years' imprisonment for membership of a terrorist organisation acting abroad in peacetime and for incitement to terrorism. The Court held that deportation to Tunisia would be a violation of Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment). It rejected the attempt of the UK government (intervening in the case) to introduce an approach to Art 3 which would have 'balanced' the risk of ill-treatment against the reasons for the expulsion to determine whether the responsibility of the expelling state is engaged under Art 3. It also rejected the UK government's argument that a higher standard of proof of the risk of ill-treatment was required where the person was believed to represent a serious danger to the community. It reaffirmed that for a planned forcible expulsion to be in breach of the Convention it was necessary, and sufficient, for substantial grounds to have been shown for believing that there was a real risk that the person concerned would be subjected in the receiving country to treatment prohibited by Art 3. The Court also affirmed that the giving of diplomatic assurances by a receiving state would not absolve the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against prohibited ill-treatment.

AS Somalia v ECO Addis Ababa and SSHD [2008] EWCA Civ 149: an applicant for entry clearance whose personal situation had deteriorated between the date of refusal of entry clearance and the hearing of the appeal could not have the later matters taken into consideration. The Nationality Immigration and Asylum Act 2002 contained an express prohibition in s 85, which it was not possible to read down pursuant to the Human Rights Act 1998 s3 in order to make it conform to the Art.8 right.

FK Kenya v SSHD [2008] EWCA Civ 119: Where the specific facts of an asylum seeker's situation had not been adequately addressed by the Asylum and Immigration Tribunal, her case was remitted so that the critical issue of the reasonableness of internal relocation within Kenya could be properly determined. The case involved the reach of the Mungiki sect and the risk of FGM. Although the AIT had unfairly criticised an expert report, its appraisal of the expert evidence was not so flawed as to undermine their overall conclusion about the situation of women in Kenya. But the tribunal had failed to engage properly with the critical issue of whether, if F was to live elsewhere in Kenya, her fear would no longer be well founded. The specificity of F's case, which related not to the existence of a well founded fear of returning to her home village, but to the reasonableness and safety of moving elsewhere in Kenya, had not been adequately addressed and F's case was remitted to the AIT so that the critical issue of the reasonableness of internal relocation could be properly determined.

R (Rashid) v SSHD [2008] EWHC 232 (Admin) 15 month delay in dealing with Iraqi claim not abuse of power/ manifestly unreasonable: Forbes J.

Secretary of State v AN [2008] EWHC 372 (Admin) 29.2.08 (Mitting J): Having heard the closed evidence presented by the Secretary of State in support of a control order, the judge was satisfied that there was a prima facie case justifying the reasonable suspicion required to impose the order, but held that the evidence disclosed so far did not permit the Respondent to answer the case against him. He held that it was not appropriate to wait until the end of the case and then decide retrospectively whether the Respondent had enjoyed a substantial measure of procedural justice, and put the Secretary of State to her election, either to disclose further material on which she relied or to withdraw allegations based on material she was not prepared to disclose.

R (Beecroft) v SSHD [2008] EWHC 364 (Admin): useful case raising issues of breach of detention centre rules, failure to conduct medical examination, unlawful detention of a torture victim and unlawful refusal to treat further representations following refusal as fresh claim.

RQ (Afghan National Army - Hizb-i-Islami - risk) Afghanistan CG [2008] UKAIT 00013: New country guidance case which indicates that serving soldiers assume risks and that a soldier of the Afghan National Army (ANA) has sufficiency of protection. Any risk which arises during home leave and troop movements is reasonable to the Horvath standard. At the end of military service, former ANA soldiers are not at risk engaging international protection solely for that reason. The case deals with specific risks and with internal relocation, holding that generally, internal relocation to Kabul is available and it would not be unduly harsh to expect an appellant with no individual risk factors outside his home area to live in Kabul and assist in the rebuilding of his country. Internal relocation outside Kabul is unlikely to provide sufficiency of protection.

Events

5 March 2008, 1.30pm - 6.30pm: ILPA training - An introduction to immigration law, getting started, the first step to accreditation. 4.5 CPD points. Cost: ILPA members £180, others £360, concessionary rates available. Booking: see www.ilpa.org.uk or tel 020 7251 8383

7 March 2008, 09:30 to 17:00: Trafficking for sexual and labour exploitation II. Causes of Trafficking Providing Durable Protection Next steps for UK Action Plan Investigation, Law Enforcement and Prosecution. 6 CPD points. Cost: £58.75. Booking: Garden Court chambers

12 March 2008, 4pm - 7.15pm: ILPA training - working with older children and young adults (Age disputes, welfare and support, transition at 18 and the threat of removal). 3 CPD points; cost £120 (members, £240 non-members)

14 March 2008, 9.30am - 4.30pm HJT - JUDICIAL REVIEW CONFERENCE (Detention; Remedies; The New Protocol in Practice Fresh Claim Litigation: Procedure, Tactics and Strategy Interventions; Challenging Delay in Home Office decision making; Using EC Law including Charter for Fundamental Rights; Challenging Work Permits UK Home Office Policies: Near Misses and Legitimate Expectation. 6 CPD points; cost £250 + vat

25 April 2008: The UK Borders Act 2007 explained: afternoon course by JCWI, 4 CPD points, cheap rates (£65 + VAT) for LSC contract holders. Booking Contact: 0207 608 7306
Booking email: lucia@jcwi.org.uk

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