Issue 86 - 28th April 2008

Monday 28 April 2008

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News

From 28 April 2008, people applying for an extension of stay in the United Kingdom using application forms for students FLR(S) and marriages FLR(M) will also need to complete the new section (7) of the application form which covers biometric immigration documents. Biometric immigration document is the legal term for identity cards for foreign nationals. More Info

Legislation

The Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2008 No. 1088 (L. 7) bring into effect some important amendments. New rule 30 of the Rules dealing with reconsideration will demand that when the other party to the appeal is served with an order for reconsideration, he must file with the Tribunal and serve on the applicant a reply setting out his case if he contends that there was no error of law, or no material error of law, in the decision on the appeal; rule 36 restores the power of the Tribunal, faced with an application for permission to appeal to the Court of Appeal, to set aside its own determination and direct that the proceedings be reheard. Also important is a new provision that requires the respondent to notify the Tribunal if the respondent knows of the appellant´s change of address. More info

Cases

In AS & DD (Libya) v Secretary of State for the Home Department & Anor [2008] EWCA Civ 289 (09 April 2008) the Court of Appeal upheld the decision of SIAC that whereas Libya would probably keep its word not to torture a returnee, there was a risk that it would not: and that this meant that removing an individual there, even with the benefit of a Memorandum of Understanding, brought with it a real risk of torture.

In YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 (15 April 2008) Sedley LJ in the Court of Appeal wrote, regarding refugees who relied on activities in the United Kingdom to establish their status here, that it was unreal for the Tribunal to seek positive evidence that the authorities had "the means and the inclination" to monitor activities such as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. However the real question will be what follows for the individual claimant based on their own profile.

Holman J in the Administrative Court in Malik (R on the application of) v Secretary of State for the Home Department [2008] EWHC 888 (Admin) (16 April 2008) stated that in light of the new country evidence, the forthcoming decision in Nasseri and conflicting approaches to "safe third country" judicial reviews involving Greece, there must be some form of composite hearing for the many pending cases.
The Tribunal in MJ and others (Art.12 Reg.1612/68, self sufficiency?) [2008] UKAIT 00034 (21 April 2008) found that although Article 12 of Regulation EEC 1612/68 was not repealed by Directive 2004/38/EC, any rights which the family members of an EEA national may have under it after the EEA national has ceased working but remained in the United Kingdom are not unconditional but subject to demonstrating self sufficiency and the possession of comprehensive sickness insurance in the United Kingdom.

The Tribunal in DS (s 88: meaning of "a work permit") India [2008] UKAIT 00035 (24 April 2008) found that having regard to the definition of "work permit" in section 33(1) of the 1971 Act, with its requirement that a work permit is a permit indicating that a person named in it is eligible for entry into the United Kingdom for the purpose of taking employment, where as at the date of the immigration decision the work permit had ceased to be valid, it was not an immigration document for the purposes of section 88(2)(b) of the 2002 Act (conferring a right of appeal).

In Ismoilov and Others v. Russia (Application no. 2947/06) the European Court of Human Rights reiterated that it had to be satisfied that the assessment made by the national authorities is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations. The evidence from a number of objective sources demonstrated that problems still persisted in Uzbekistan in connection with the ill-treatment of detainees: and the Court repeated its view in Saadi that diplomatic assurances were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices resorted to or tolerated by the authorities which were manifestly contrary to the principles of the Convention, and its view in Soering that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.

Events

Mark Symes, Raza Husain and Samantha Knights will be giving training on internal armed conflict and Article 15(c) of the Refugee Qualification Directive on Wednesday 7 May 2008 see www.ilpa.org.uk for details.

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