Read more
Free Movement – The Court of Appeal has re-visited the proper approach to deciding whether fresh asylum claims meet the rule 353 test. The case is R (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 and it effectively supersedes WM (DRC) and interprets the Supreme Court decision in BA (Nigeria). In fact none of it comes as a surprise, though, and it adds little if anything new.
Firstly, giving the leading judgment, Lord Justice Carnwath holds that there is no practical difference between the rule 353 test for a fresh claim and the clearly unfounded test at section 94 of the 2002 Act. Their Lordships in the Supreme Court expended a lot of intellectual energy saying that the tests were different, but there we go. It’s all counting angels.
Read more
Free Movement – Mr Justice Collins has given a scathing judgment in a grant of permission to a judicial review challenge to the practice of the Home Office’s Third Country Unit (TCU) in detaining and removing children to supposedly safe third countries such as Greece and Italy. The case was heard yesterday and a transcript was ordered but is not available at the time of writing.
For more on third country cases generally see this recent post. The arguments on return of children to a third country were obviously considered by Collins J to be different to those relating to adults.
Read more
The latest Statement of Changes in Immigration Rules was laid before Parliament yesterday.
The changes include:
‘The Immigration Rules are being amended to make provision for the launch of the electronic Confirmation of Acceptance for Studies (CAS) for Tier 4 of the points-based system. This will strengthen the sponsorship arrangements for Tier 4 and provide educational institutions with a fast and straightforward electronic system to sponsor students. As a transitional arrangement the current visa letters will continue as an alternative to CAS in the short term.
‘A new Representatives of Overseas Business category which replaces the old Sole Representatives category. The new category introduces a requirement to speak English, which will ensure business representatives are able to make an effective contribution while they are here. It makes provision for representatives of overseas media organisations under the Immigration Rules.
‘The arrangements for migrants covered by the judgment of 6 April 2009 in the judicial review brought by the HSMP Forum Ltd are being brought within the Immigration Rules.
‘Minor technical changes are being made to various categories of the points-based system.
This Statement of Changes in Immigration Rules will be incorporated into a consolidated version of the Immigration Rules which can be found under the ‘Policy and Law’ section of this website. You can also find copies of all the Statement of Changes in Immigration Rules issued since May 2003 in this section.
The changes will come into effect on 1 October 2009. Updated guidance for sponsors and applicants will be available on this website from 30 September 2009.
There has been a noticeable trend recently for the Home Office to refuse applications but not to take enforcement action. Several lawyers have commented on this elsewhere, I’ve just come across a couple of cases and so has a colleague in chambers.
Where a person’s leave has already expired, if he or she makes a new immigration application there is no right of appeal to the Asylum and Immigration Tribunal if the application is refused. This is because a refusal of leave to remain where there is no existing leave is not an appeal-able immigration decision.
In two recent examples, applications were made in time that would have generated a right of appeal. In one, too much money was paid for the fee, so the whole thing was rejected. I know. Bonkers. By the time the rejection was received, leave had expired and when the application was resubmitted it was refused with no right of appeal. In the other case it was a domestic violence application. The applicant claimed to be destitute and therefore exempt from the fee, but the Home Office rejected this assertion and therefore rejected the application purely on the basis of no fee being paid. Again, by the time the rejection was received, leave had expired and so when the re-submitted application was rejected there was no right of appeal.
Short of introducing some sensible rules on re-submitted applications and rights of appeal, what the Home Office should be doing in such cases is issuing removal directions to take enforcement action. The decision to make removal directions would generate a right of appeal, and the tribunal could then look at the merits of the case. As it is, UKBA is instead writing a letter saying (I paraphrase) ‘if you wouldn’t mind awfully, it would be nice if you left the country’.
Whichever way you look at it, this is woeful behaviour. It is a failure to take enforcement action against those who have no right to remain and it is also denying them a right of appeal to seek to prove their case. It’s bad for everyone.
Instead, privately paying clients and the Legal Services Commission end up paying immigration lawyers lots of money to bring judicial review applications that are almost certain to succeed. The Home Office must really love us.
Source:Free Movement
Author: Kevin Browne
Immigration Law is a straightforward, up-to-date and practical introduction to this changing area of law. After a short, practical introduction in Chapter 1 (which includes a list of useful websites), the book deals with British nationality and the right of abode in the United Kingdom in Chapter 2. This is followed by a detailed analysis of immigration controls in Chapter 3. The unique immigration status of EEA nationals and their family members is considered in Chapter 4, along with how a family member of a British citizen who has engaged Treaty rights might use EC rather than domestic law to enter the UK.
Immigration Law
The next four chapters then address the key immigration categories of entry to the UK, including a new chapter on the points based system. Asylum seekers and refugees are considered in Chapter 9. Enforcement of immigration law and the appeals system are dealt with in the last two chapters. The appendices contain key resource documents such as the Immigration Rules, the Immigration (EEA) Regulations 2006 and materials on the points based system.
This new edition includes coverage of many important developments including conditions of entry introduced by s16 of the UK Borders Act 2007; the new time periods for refusing entry to the UK; the new specified forms procedure; identity card requirements; new student visitor category; Tiers 1, 2 and 5 of the new points based system (Chapter 7); key entry clearance questions for a spouse or civil partner; withdrawal, cancellation and revocation of refugee status; the automatic deportation of foreign criminals under s 32 of the UK Borders Act 2007; and the new UKBA guidance on the deportation and removal of family members. New cases in this edition include OO v Secretary of State for the Home Department (2008) (the legal status of immigration requirements after entry), TC (Kenya) v Secretary of State for the Home Department (2008) (marriage or civil partnership of convenience), KG & AK (Sri Lanka) v Secretary of State for Home Department (2008) and TR (reg 8(3) EEA Regs 2006) Sri Lanka (2008) (family members of EEA nationals); MK (Somalia) v Entry Clearance Officer (2007) and MW (Liberia) v Secretary of State for the Home Department (2007) (maintenance); R (Baiai) v Secretary of State (2008) (permission to marry scheme); MB (Somalia) v Entry Clearance Officer (2008) (entry by widowed parent); R (Nasseri) v Secretary of State for the Home Department (2008) (safe third country); NF (Ghana) v Secretary of State for the Home Department (2008) EWCA Civ 906 (removal of child and parent); Chikwamba v Secretary of State for the Home Department (2008), Beoku-Betts v Secretary of State for the Home Department (2008) and N v UK (2008) (human rights). Contents Introduction British Nationality and Right of Abode Immigration Status EEA Nationals Visitors Students Employment, Business and Independent Means Family Reunion Asylum-seekers and Refugees Deportation and Administrative Removal Immigration Appeals and Judicial Review Appendices. – Law Textbooks
Product details:
Paperback: 370 pages
Publisher: College of Law Publishing; 2009 edition (15 Dec 2008)
Language English
ISBN-10: 1905391684
ISBN-13: 978-1905391684
Product Dimensions: 29.4 x 20.8 x 2.6 cm
The author of this book, Kevin Browne is an Associate Professor at The College of Law in London. Prior to joining the College he gained extensive experience as a litigator in private practice. Kevin is responsible for the design of the Welfare Benefits and Immigration Law elective at the College.
The Home Office is seeking urgently to deport a leading Zimbabwean human rights activist, despite claims from MPs that the move will place his life in danger. Luka Phiri, a former aide to the vice-president of the Movement for Democratic Change, Thokozani Khupe, was detained last week and is being held at Colnbrook Immigration Centre.
He was due to be deported on Wednesday, but the move was blocked at the eleventh hour following intervention from Phiri’s MP, the Labour minister Stephen Timms, and a number of other politicians, including Kate Hoey, chair of the all-party parliamentary group on Zimbabwe.
Although the government has pledged not to remove Zimbabweans from the UK, two immigration judges have approved Phiri’s removal on the grounds he entered the country on a Malawian passport. Phiri, who grew up in Zimbabwe, insists he acquired the Malawian passport when he fled his native country after being tortured by Robert Mugabe’s supporters.
Malawian immigration officials have told journalists Phiri will be arrested when he enters the country and prosecuted for obtaining a passport fraudulently. “Due to overcrowding in Malawi prisons, we will hand him to the Zimbabwe authorities,” one said.
Hoey said: “The Zimbabwean community in the UK feels very strongly that Luka is a Zimbabwean and, as soon as I heard that he had been detained, I urged the Home Office to halt his deportation. I pointed out that Luka has been a vocal critic of Mugabe in London and is bound to be known to the Harare regime.”
Phiri’s deportation order is now the subject of a judicial review. – The Observer
A FAMILY of African asylum-seekers living in Sheffield have been spared deportation for the time being after an eleventh hour intervention by their supporters.
Priviledge Thulambo, aged 39, and her student daughters Valerie, 20, and Lorraine, 18, were due to be flown out of the UK at 7pm yesterday on a Kenyan Air-ways plane.
But yesterday morning, as the trio were about to be driven to Heathrow airport, an application for Judicial Review was lodged with the Administrative Court and registered just after midday.
The legal development means their case will be re-examined by the courts, and the family will be kept at Yarl’s Wood detention centre in Bedfordshire to await further news.
Today supporter Justin Lister said: “It was all quite eleventh hour, but it had to be because the courts will only process applications for judicial review if they relate to a deportation flight within the following 24-hour period. It had to be applied for on the morning they were due to be deported.
“It is a victory to some extent, but it’s more about the fact that at last this case is going to be handled with proper legal representation.
“We are now hoping to get the family granted bail so they can leave Yarl’s Wood while the case is reviewed.”
Priviledge, Valerie and Lorraine, who are originally from Zimbabwe, were taken earlier this month from their home on Heavygate Road, Walkley, after their applications for asylum were refused.
They arrived in Britain eight years ago following the deaths in Zimbabwe of three relatives – opponents of president Robert Mugabe’s regime. Priviledge, who was born in the capital city Harare, says her brother was killed by being forced to drink rat poison.
But because they had to flee their homeland using fake passports showing Malawi as their country of origin, the British authorities planned to send them back there.
Supporters say that is a “death sentence” – because the trio will inevitably be sent on to Zimbabwe, where they face torture and death.
Around 1,340 people have so far signed an online petition set up on the social networking site Facebook. – The Star
The implications of the tougher-sounding rhetoric of the immigration minister, Phil Woolas, started to become clear yesterday when he disclosed he is to block appeals to high court judges from failed asylum seekers facing deportation.
Woolas disclosed to MPs that a high court judge had this week ordered the Home Office to fly back to Britain, at taxpayers’ expense, a deported asylum seeker whose lawyer had lodged an application for judicial review on the morning of his removal. Woolas, who said that his role was “to raise the profile of the debate” on the issue, said repeated access to a review by a high court judge had to be curbed because such appeals were being used to frustrate the system.
The power to block access to judicial review for some of those facing deportation is to be contained in an immigration and citizenship bill in next month’s Queen’s speech.
Lin Homer, the head of the UK Border Agency, said that the right to seek judicial review would remain. “We will prevent repeat judicial reviews rather than close them down altogether,” she told the Commons home affairs select committee yesterday. “Judicial reviews need to be exceptional challenges rather the normal recourse of those in this situation.”
The case cited by Woolas, in which the high court ordered the Border Agency to bring the asylum seeker back to Britain to allow his judicial review to go ahead, involved an asylum seeker who had already had two appeals.
The proposal has stirred strong legal opposition behind the scenes. A similar plan in 2004 to “oust” the role of high court judges in oversight of the asylum and immigration tribunal had to be shelved after a full-scale judicial revolt.
David Winnick, the Labour MP for Walsall North, said judicial oversight of executive decisions was an important principle, otherwise the executive was acting as judge and jury.
The Law Society has already told Woolas that the allegation that appeals were generally pursued to prolong the stay of the asylum seeker was clearly wrong when so many initial asylum decisions by the Border Agency were overturned. This week’s asylum figures show that 23% of all asylum appeals succeed, with the original decision overturned.
The Law Society has told the Home Office that the substantial proportion of individuals facing deportation who seek fresh judicial redress do so because “justice has not been done the first time around”. They end up adding to the hundreds of thousands of unresolved cases being dealt with by the Home Office.
Homer told the MPs that some cases in a 400,000 backlog would not be dealt with until 2011. She said that despite having 950 staff working on these “legacy cases”, only 130,000 of them had so far been resolved. - The Guardian
