Issue 97 - 14th July 2008

Monday 14 July 2008

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News

The Home Office published the arrangements for migrants covered by the HSMP Forum judicial review judgment of the 8 April 2008. Persons with an application pending for an extension in Tier 1 (General) will have it assessed in accordance with the requirements for an extension that were in place before 7 November 2006, without making a new application. Persons who joined the Highly Skilled Migrant Programme (HSMP) prior to its being suspended on 7 November 2006 will be eligible. More info

The government's Visa Waiver Test showed a strong case for introducing visa regimes for 11 countries. These are: Bolivia; Botswana; Brazil; Lesotho; Malaysia; Mauritius; Namibia; South Africa; Swaziland; Trinidad and Tobago; and Venezuela. The Government will now work with these countries over the next six months to reduce the risk they pose. If they are able to show evidence of change there will be no need to introduce a visa regime. No final decisions will be made until early 2009. More info

The UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 No. 1818 (C. 77) brings into force the automatic deportation provisions of the UK Borders Act 2007, meaning that foreign criminals who have been sentenced to a period of imprisonment of at least 12 months now face expulsion subject only to the Refugee and Human Rights Conventions, European Community law, or where the Secretary of State thinks the foreign criminal were under the age of 18 on the date of conviction. There are transitional provisions for those in custody at the time of commencement or whose sentences are suspended. This is provided such a person has not been served with a notice of a decision to make a deportation order under section 5 of the Immigration Act 1971 before commencement. More info

The Immigration (Notices) (Amendment) (No.2) Regulations 2008 No. 1819 ensure that the Immigration (Notices) Regulations 2003 apply regarding the notice, content and service of such decisions. More info

Cases

In YG, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1735 (Admin) (08 July 2008) James Goudie QC in the Administrative Court found that even a high risk of serious re-offending and reabsconding cannot justify indefinite or unduly prolonged administrative detention, especially when actual deportation is ultimately unlikely and when the difficulties over deportation cannot to a significant extent be attributed to the claimant himself.

In Omar & Min Min (R on the application of) v Secretary of State for the Home Department [2008] EWHC 1604 (Admin) the Administrative Court found, once again, that representations regarding fresh claims will not bring with them the right to work.

In Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806 (11 July 2008) Buxton LJ in the Court of Appeal noted that the subject of deportation proceedings would have a good complaint if he was expelled in circumstances not envisaged by the Operational Enforcement Manual. He found that there was no need to refer questions going to the meaning or effect of the word "serious" in the phrase "serious grounds of public policy or public security" in article 28(2) of Directive No 2004/38/EC, as that would be to invite an attempt at definition of a concept that the legislation treats either as undefineable or as sufficient in itself to guide the decisions of member states

In Z (R on the application of) v Secretary of State for the Home Department [2008] EWHC 1600 (Admin) Mitting J found a refusal of a fresh claim could not stand given that an Immigration Judge would have approached the discrepancies and implausibilities in the claimant's account differently if they had accepted his identity, as to which there was now fresh evidence available.

Simon J in the Administrative Court in Obienu (R on the application of) v Secretary of State for the Home Department (CO/5365/2007) found that the failure by the government to acknowledge letters which ask relevant questions about matters of importance to the writers is a serious failure of public administration.

Events

There is a course on Tax law for immigration practitioners given by ILPA on Wednesday 10 September 2008, London, 4-7.15pm (speakers: Julia Onslow-Cole and Lee Hamilton, PricewaterhouseCoopers Legal LLP)

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