Issue 89 - 20th May 2008

Tuesday 20 May 2008

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CONCESSION RELEVANT TO HC 321
Rt. Hon. Liam Burne MP, Minister for Borders and Immigration:
"....First, we will not automatically refuse applications from people applying to join their family permanently in the UK-that is to say, those applying for visas as a spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A of the immigration rules; a fiancée or proposed civil partner, as set out in paragraph 290 of the rules; a parent, grandparent or other dependent relative, as set out in paragraph 317; a person exercising rights of access to a child, as set out in paragraph 246; or a spouse, civil partner or unmarried or same-sex partner of a refugee or person with humanitarian protection, as set out in paragraphs 352A, 352AA, 352FA and 352FD. Following some of the comments made by hon. Members this evening, I will of course check to see whether we have cast the scope of those exceptions correctly, but my initial analysis is that that is where the discretion should apply.

Secondly, we will not automatically refuse anyone who is under the age of 18 at the time of the breach of the immigration rules."
Hansard HC 13 May 2008 : Column 1353
More info

CASELAW

SK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 495
Although it was within the powers of the Asylum and Immigration Tribunal to pronounce an oral decision, it was clear that it was the written determination which constituted the formal determination.

Secretary of State for the Home Department v J N [2008] EWCA Civ 464
There was no authority for the proposition that a state's failure to conduct an adequate investigation into the risk of loss of life, torture or inhuman and degrading treatment was a breach of the European Convention on Human Rights 1950 art.3. The duty to investigate arose after a complaint of art.3 ill-treatment had been made.

NA (Palestinians, risk) Iraq CG [2008] UKAIT 00046
In the light of recent evidence highlighting that the position of ethnic Palestinians in Iraq has worsened. JA (Ethnic Palestinian-Iraq-Objective Evidence) Iraq CG [2005] UKIAT 00045 is no longer to be considered as authoritative on this issue. Currently ethnic Palestinians in Iraq in general face a real risk of persecution and treatment contrary to Article 3 ECHR. Whilst each case is to be considered on its merits, it would only be in exceptional cases that an ethnic Palestinian would not be at real risk.

JC (double jeopardy: Art 10 CL) China CG [2008] UKAIT 00036
There is a risk of prosecution or re-prosecution under Articles 7 and 10 of the Chinese Criminal Law for overseas offenders returned to China. However, the use of those provisions is discretionary and extremely rare. Absent particular aggravating factors, the risk falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection. The burden of proof does not shift to the Secretary of State in double jeopardy cases.

HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044
It is a question of fact to be decided on the evidence of the appellant's history and experiences as to whether a homosexual appellant "can reasonably be expected to tolerate" living discreetly in Iran. Enforcement of the law against homosexuality in Iran is arbitrary but the evidence does not show a real risk of discovery of, or adverse action against, homosexuals in Iran who conduct their homosexual activities discreetly. The position has not deteriorated since RM and BB.

MD (HC 395: "two years") Jamaica [2008] UKAIT 00041
The requirement in para 289A and other paragraphs of HC 395 that a person have been granted two years' leave is met by a grant of more than two years.

TT (Long residence, "continuous residence", interpretation) British Overseas Citizen [2008] UKAIT 00038
For the purpose of paragraphs 276A - 276D of HC 395, a period of continuous residence, as defined in paragraph 276A(a), is not broken in circumstances where a person with leave to remain in the United Kingdom obtains further leave from an Entry Clearance Officer while temporarily outside the United Kingdom prior to the expiry of the leave to remain. The IDI Chapter 18 on Long Residence at paragraph 2.1.3 neither binds the Tribunal nor states the position correctly.

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