Issue 80 - 17 March 2008

Monday 17 March 2008

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News

New Border Agency

The birth of the new UK Border Agency (UKBA) was announced by Home Secretary Jacqui Smith. The UK Border Agency will bring together the work of the Border and Immigration Agency, UK Visas and parts of HM Revenue and Customs at the border, who will work closely with the police and other law enforcement agencies on issues of border control and security. Detailed plans will be published shortly.

The new measures include:

  1. In addition to the 3,000 police permanently based at our borders 39 new Special Branch posts will be funded in 2008/09 to increase specialist police coverage, with funding for border policing increasing to around £75m in the new financial year.
  2. In the autumn new legislation will also be sought to provide the basis for new powers for the UKBA as part of a new immigration bill.

Failed Iraqi asylum seekers

More than 1,400 rejected Iraqi asylum seekers are to be told they must go home or face destitution in Britain as the government considers Iraq safe enough to return them, according to leaked Home Office correspondence seen by the Guardian. The Iraqis involved are to be told that unless they sign up for a voluntary return programme to Iraq within three weeks, they face being made homeless and losing state support. They will also be asked to sign a waiver agreeing the government will take no responsibility for what happens to them or their families once they return to Iraqi territory.

The United Nations high commissioner for refugees (UNHCR) said its policy was that returns of asylum seekers to central and southern Iraq and for some categories to the north of the country were not advisable because of the continuing conflict. The Refugee Council said the decision disclosed by the Guardian was a shocking example of the government's policy of using destitution to starve people into leaving the country.

Although the government has repeatedly tried to return failed asylum seekers to northern Iraq since 2005 with special charter flights to Arbil, it has never regarded the routes from Britain to Baghdad or Basra, as safe enough to return anyone to central or southern Iraq. The letter from the Borders and Immigration Agency's (BIA) case resolution directorate makes clear that the home secretary now considers that travel to Iraq from the United Kingdom is "both possible and reasonable". It continues: "Therefore these Iraqi nationals no longer qualify for support under this criterion." The Home Office letter says a failure to respond within the timescale will result in support being discontinued, although there will be a right of appeal. "The government is committed to ensuring that unsuccessful asylum seekers do not remain in the United Kingdom indefinitely. We consider that voluntary returns are by far the more dignified way of making a return, but if individuals fail to leave, their removal may be enforced," it warns.

Cases

EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017 - (1) The Citizens right to be admitted to the UK for a period of three months under the Citizens Directive and the EEA Regulations does not entitle an EEA national to add three months to the end of a period of lawful presence in the UK. (2) A Bulgarian or Romanian national has to comply strictly with the provisions of the 2006 Regulations in order to obtain the benefits derived from them.

AB (Third-party provision of accommodation) [2008] UKAIT 00018 - Paragraph 281(iv) of HC 395 does not prohibit the provision of accommodation by a third party. 13. So far as accommodation is concerned they need to show that they will have a home that they will be able to call their own however that home is provided. The accommodation must be adequate, but the rule does not require. anything about the source of it

MK (Family reunion policy: scope) Somalia [2008] UKAIT 00020 - The wording of paragraph 16.2 of Diplomatic Services Procedures on family reunion is clear with regard to the family members who are entitled to family reunion under that policy. There is no scope for arguing that other family members fall within it.

LK (EEA Regulation 10(3) - "direct descendant" - "attending") Kenya [2008] UKAIT 00019 - (1) Regulation 10(3) of the Immigration (European Economic Area) Regulations 2006 can only properly be interpreted as applying to a person who is a direct descendant of a person as defined in Regulation 10(3)(a), and who was actually attending an education course at the prescribed time. (2) Acceptance on a course, even if unequivocal, is not attendance.

NH (VIETNAM) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 7/3/2008 N, a Vietnamese national, was a member of a religion subject to Vietnamese Government control. N was arrested and mistreated by the Vietnamese authorities for subscribing to that religion. She alleged that the worst incident of detention occurred when she was detained for three months in a labour camp where she was forced to partake in manual, hard labour. On release from that camp she fled to the United Kingdom and applied to the secretary of state to grant her asylum. N's appeal to an adjudicator was dismissed. Subsequently, the AIT remitted the case for reconsideration. N's appeal was again dismissed and her second appeal to the AIT was also dismissed. The AIT's final decision was premised solely upon N's failure to demonstrate a significant risk of persecution if returned to Vietnam. N submitted that (1) the AIT had considered her position only in relation to her appeal under Article 3 and not in relation to her appeal under Article 9 of the Convention. She argued that she was entitled to a decision in relation to that aspect of her appeal and the failure by the AIT to give one was a material error of law; (2) the nature of N's case and the facts therein gave rise to an implicit engagement of Articles 4(2) and 5 of the Convention. N argued that the tests involved when considering whether there would be a breach of those Articles was akin to "obviousness" and was a far lower hurdle than the tests involved in Art.3 and Art.9 and accordingly the AIT's failure to address itself to a consideration of those Articles materially affected N's appeal and was an error of law.

HELD: (1) The AIT premised its decision solely on N's appeal under Art.3 whilst disregarding the live issue of Art.9. Rightly, the secretary of state conceded that a decision so framed was a material error of law having regard to the unanswered submissions in relation to N's appeal under Art.9. Accordingly the case was remitted for reconsideration. (2) The test in relation to Art.4(2) and Art.5 might have been dissimilar to the applicable tests under Art.3 and Art.9 but the issue was unclear. Nevertheless, whilst the facts in the instant case did give rise to an implied engagement of Art.4(2) and Art.5, the effect or otherwise of such an engagement was something for a specialist tribunal of fact to consider rather than the Court of Appeal. It would be wholly unsatisfactory for the instant court to adjudicate on N's appeal under Art.4(2) and Art.5 on the basis of hypothetical and incomplete facts in relation to those Articles in advance of a reconsideration of her appeal under Art.9. Accordingly the matter was remitted along with the substantive appeal to the AIT for a full and final determination of the entire appeal.

Courses

ILPA Courses

Challenging Immigration Detention - An Update (DT 1058)
Monday 7 April 2008, London, 4-7.15pm
Speakers: Graham Denholm, 1 Pump Court, James Elliot, Wilson and Co
3 CPD hours
Fee: ILPA members £120, CR*£60, Non members £240
Unlawful detention? Bail? Judicial review? Habeas corpus? Which, how, when? How should you prepare, and how present? Can you claim damages? Two detention experts will guide you through this complex, creative and challenging area of practice.

'Significant Others' applications for fiance(e)s, partners and spouses (DT 1047)
Thursday 10 April 2008, London, 10am-5pm
Speakers: Tim Barnden and Barry O'Leary, Wesley Gryk Solicitors
5.5 CPD hours
Fee: ILPA members £220, CR*£110, Non members £440
Return with updates of a very well-loved course, described by attendees of previous sessions as "Best course so far attended", "intellectually coherent", "Excellently prepared and executed", "very informative and really helped me to look at different ways of tackling different circumstances". A chance to hear from two practitioners who have been at the forefront of pushing for developments in the law in this area and have excellent reputations as trainers.

Student applications and appeals under the Rules (DT 1048)
Friday 11 April 2008, Leeds, 2-5.15pm
Speakers: Muhunthan Paramesvaran, Wilson and Co, Abi Smith, Tooks Chambers
3 CPD hours
Fee: ILPA members £120, CR*£60, Non members £240
Repeat with updates of the very successful course on this specialist area; a chance to master student applications.

HJT Training Courses

No Return: The New Rule 320 Seminar by Colin Yeo and HJT Training
When: Wed March 19 from 16:00 to 19:00 CPD: 3 Location: Kings College, Waterloo Campus. Room G.80, Stamford St, London, SE1 9NH Price: £ 99.00 plus vat - Normal Price; £ 60.00 plus vat - for NFP, academics, pupil barristers, trainee solicitors & students

From the 1st April 2008, those who have breached immigration rules will be barred from re-entry under the new immigration rule 320. We are holding an early evening seminar that will look at the implications of this new rule and its effect on the legal advice services and their client's situations.

Deportation Appeals Course by Ranjiv Khubber and HJT Training
When: Thu March 27 from 16:00 to 19:00 CPD: 3 Location: London Price: £ 99.00 plus vat - Normal Price; £ 60.00 plus vat - for NFP, Academics, Pupil Barristers, Trainee Solicitors & Students

This course gives an overview of issues arising in the very topical area of appeals against "conducive to the public good" deportations, including those relevant to individuals who have committed criminal offences. We address: the statutory, immigration rule and policy framework; tactics and the role of factors including the views of the sentencing judge and the Probation Service, and the danger of re-offending. We also address: the latest Strasbourg case law and the relevance of family life issues; the impact of criminal offences on an appeal on refugee grounds; European Community law cases. Finally, we give an overview of issues arising from the detention of foreign national prisoners, such as spotting unlawful detention, and addressing the latest case law on detention and access to justice.

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