Issue 99 - 28th July 2008

Monday 28 July 2008

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News

From Monday 28 July 2008, employers and educational institutions can apply to join the sponsor register for tiers 2, 4 and 5 of the points-based system. This applies especially to employers and educational institutions planning to bring in migrants to work or study in the UK under these tiers. More info

The latest report by the Asylum Support Appeals Project shows that some categories of refused asylum seekers are forced into destitution through no fault of their own, because UKBA is enforcing unreasonable and impractical eligibility criteria for section 4 support.

In Resolution 03/08, on the Human Rights of Migrants, the Inter-American Commission remarked on international standards regarding the human rights of migrants, in the context of the "Directive of the European Parliament and of the Council on common standards and procedures in Member states for returning illegally staying third-country nationals" ("Return Directive") approved by the European Parliament on June 18, 2008. They found that the Directive raised concerns specifically with respect to the absence of sufficient safeguards for integral respect for the rights of asylum-seekers and migrants, including the existence of effective substantive and procedural safeguards to identify and safeguard the rights of individuals eligible for asylum. They were especially concerned about questions of detention, including detention in prison facilities, which they considered to be incompatible with basic human rights guarantees. More info

Cases

In Metock v Ireland (Case C 127/08; 25 July 2008) the European Court of Justice found that Directive 2004/38 precludes Member States from requiring that a third country national spouses of Union citizens exercising Treaty rights to have previously been lawfully resident in another Member State before arriving in the host Member State. Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State

In RS (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 839 (18 July 2008) the Court of Appeal noted that in the light of N in the European Court of Human Rights, which provided some support for a broad approach to "humanitarian considerations", it was possible that a migrant could succeed in arguing against removal on health grounds absent being a deathbed case, particularly where the lack of medical facilities or food is due to the infliction of deliberate harm rather than a lack of national resources.

InGM (Eritrea) & Ors v Secretary of State for the Home Department [2008] EWCA Civ 833 (17 July 2008) the Court of Appeal found that it would be difficult for a person who lacked credibility to persuade the Tribunal that they had left Eritrea illegally.

In PD (Grounds, implied variation, section 86(3)) Sri Lanka [2008] UKAIT 00058 (23 July 2008) the Tribunal found that the jurisdiction of the Tribunal under section 86(3)(a) of the Nationality Immigration and Asylum Act 2002 is limited to the original grounds of appeal as varied under rule 14 before the Immigration Judge, with the exception of any Robinson obvious points which have been overlooked: the backlog policy does not raise any such points.

In SK (Sierra Leone) v Secretary of State for the Home Department [2008] EWCA Civ 853 (9 June 2008) the Court of Appeal approved Sedley LJ's statement that in AH Sudan "Their Lordships do not say ... that the standard of decision making, or the principles of judicial scrutiny which govern immigration and asylum adjudication, differ from those governing other judicial tribunals, especially when for some asylum seekers adjudication may literally be a matter of life and death".

Events

There is a course on Tax law for immigration practitioners given by ILPA on Wednesday 10 September 2008, London, 4.00-7.15pm (speakers: Julia Onslow-Cole and Lee Hamilton, PricewaterhouseCoopers Legal LLP)

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