Issue 82 - 31st March 2008

Monday 31 March 2008

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LEGISLATION

SI 2008 No 977 with effect from 7th April 2008, amends the Criminal Justice Act 1991 to expand the early release scheme so as to enable foreign national prisoners to be removed from prison, and hence the UK, at an earlier point in their sentence

Immigration rule change [HC 420] from 7th April 2008 changes to paragraphs 331-332, 333C, 338 and 353 which relate to the circumstances in which SSHD can treat an asylum claim as withdrawn. The asylum claim can be withdrawn expressly ie if an asylum seeker asks to withdrawn his/her claim. If an asylum seekers fails without reasonable excuse to attend her substantive interview the rules state that the asylum claim will normally be treated as withdrawn. The rules indicate that a reasonable excuse would be that the failure to attend an interview was due to circumstances beyond the asylum seeker's control. more info

HC 321 (paragraphs 42-47) came into force on 1st April 2008, immigration rules which will deal with a way an entry clearance application should be treated where an applicant has previously breached UK's immigration laws by overstaying, illegal entry, deception through false documents, breaching conditions of stay (eg working illegally). The new immigration rules set out periods by which an "immigration offender" will have any future application refused

  • 1 year if following breach person left at own expense
  • 5 years following breach left voluntarily but at public offence
  • 10 years if removed or deported following breach

https://www.bia.homeoffice.gov.uk

CONCESSION RELEVANT TO HC 321

Statement of change HC 321: motion to disapprove. Extract from Lords Hansard, Volume No 700 Part No 67, 17th March 2008-04-10. Lord Bassam of Brighton

....A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 320(7B) of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.
I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 320(7B), however, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government's objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession....

CASE LAW

OB Turkey v SSHD [2008] CA 3/4/2008 A comprehensive risk assessment required the assessment of up to date circumstances taking into account the various risk factors which included the claimant's background circumstances and family connections. A person's activities and risk connected to it is a starting point but the Tribunal should have considered other risk factors including ethnicity, religious persuasion and country guidance case law.

KH (Article 15 ( c ) Qualification Directive) Iraq CG [2008] UKAIT 00023 25th March 2008. The tribunal accepted that Iraq is in a state of internal armed conflict and found that a national of Iraq can satisfy that part of Article 15©. The Tribunal found that neither civilians in Iraq generally or civilians in the provinces and cities worst affected by the armed conflict can show they face a "serious and individual threat" to their "life or person" within Article 15© merely by virtue of being civilians.

EN and AN (EEA regulation 12: British Citizens) KENYA [2008] UKAIT 00028 A British Citizen not being subject to any of the restrictions on residence in the EEA regulations cannot be regarded as "residing in the UK in accordance with these regulations" for the purposes of regulation 12, even if he has citizenship of another member state.

COUNTRY INFORMATION

Sudan: Operational guidance note on Sudan (April 2008) More info

Ethiopia: Operational guidance note on Ethiopia (April 2008) More info

US/Jordan: Stop Rendition to torture - CIA transfer of suspects to Jordan for torture violates International law (April 2008) hrw.org

Zimbabwe: Arrests threaten deeper crisis. Fears of government crackdown on political opposition and civil society in the wake of hotly contested elections (April E2008) see www. hrw.org

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