KEY DEVELOPMENTS IN

IMMIGRATION

CASE LAW FROM THE HIGHER

COURTS AND THE TRIBUNAL

INTRODUCTION TO HJT TRAINING

ONLINE ACCREDITATION

Written by Mark Symes

HJT Training Ltd

83 Baker Street
London
W1U 6AG

Tel: 01322 424694

Fax: 01322 424692
Email: enquiries@hjt-training.co.uk
Website: www.hjt-training.co.uk
 INTRODUCTION TO HJT TRAINING
ONLINE ACCREDITATION
Suggested Time Taken for Completing Course

40 minutes reading time; 20 minutes exercise time

Statement of Currency

This course sets out developments in the case law relating to immigration practice for the period
from January to April 2008.

Aims and Learning Outcomes

This course will assist delegates to appreciate developments in the substantive law regarding
detention, human rights and refugee law, European law, the interpretation of the immigration
rules, and judicial process including evidence

Level of Course

The course is at intermediate level. Whilst it should be of interest to all immigration practitioners, it
is likely to be most beneficial for those who have some experience of appeals to Immigration
Judges at first instance. It is designed for solicitors in private practice, NGOs and government
departments whose work touches on reconsideration cases and appeals to the Court of Appeal,
and for barristers.

FREQUENTLY ASKED QUESTIONS

Course Completion

The Course is designed to be completed in the course of a single day. We recommend that
Delegates complete the Course and answer the questions within 21 days of receiving it in order
to ensure the legal information remains current.

Delegates should divide their time equally between each Section of the Course.

How do I Claim CPD?

Course participants cannot claim CPD hours for reading without demonstrating their
understanding. They must apply their knowledge by answering questions by way of assessment
of their understanding. This course has been assessed by legal professionals, on which basis we
have determined this course and its accompanying questions should take two hours to read and
complete:

Hence it is accredited at 1 CPD Hours which includes 40 minutes of Reading Time and 20
minutes for Answering the Questions

Note that time spent on distance learning courses including computer-based courses can qualify
for up to 75% of a solicitor’s CPD requirement ie 12 hours per year

©HJT Training Ltd

 How is this Course Assessed?

By Multiple Choice Questions (MCQs via a secured link within the HJT Training website. Login
ID’s and password will be sent to you separately via email, where you will be able to answer the
questions interactively. In order to pass the assessment and gain CPD credit the delegate must
correctly answer half of the total number of questions (this being their “Test Score”). HJT Training
will then mark the MCQs using marking schemes drawn up by suitably qualified assessors.
Delegates must attempt all the questions.

How do I Know how the Quality of my Learning Experience?

We will take all reasonable steps to provide the correct answers to all the questions within ten
working days of receiving an email with your answers. If we cannot meet this timetable we will
email you giving a new date for our response. By then we will have marked your answers and we
will then provide Test Scores to Delegates.

How Does the Law Society Know I have Completed these CPD Hours?

Names of Course participants will be held by HJT Training in a register for this course and made
available to the Law Society should they wish it, in line with standard practice.

What About my Training Record?

We will confirm your successful completion of this course by a letter.

Technical Support Services

All that Delegates require for this Course is internet access and an electronic mail address on
which they can receive emails and Word attachments. The office is manned from 09:30 until
15:30 on week days and we will answer technical questions within 2 working days of their being
asked.

Provision for Answering Queries

Delegates are welcome to raise queries about the Course. However we cannot answer questions
on individual cases. We will address any queries sent by electronic mail to info@hjt-training.co.uk
within ten working days of their being asked.

Disclaimer

HJT Training does not accept liability for errors or omissions in this Course or arising out of
reliance on the Course, beyond the price of the Course.
This Course is not represented as being anything other than a Training Guide
and cannot replace professional research and representation

©HJT Training Ltd

 CONTENTS

Section Page

1. Detention 2

2. Human rights 3

3. Refugee Law 5

4. Immigration Rules 8

5. European Law 13

6. Judicial Process 15

7. Evidence 16

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 1. DETENTION
Failure to Investigate Torture Claim of Detainee

The Home Office approach to detention continued to be the subject of much

litigation. Kenneth Parker QC sitting as a Deputy High Court judge in the
Administrative Court in R (Beecroft) v Secretary of State for the Home
Department [2008] EWHC 364 (Admin) (6 February 2008) found that a failure to
examine an asylum seeker was unlawful where they raised a claim of torture of
which they bore visible scars, where it could be said that it was more probable
than not that such an examination would have resulted in a report being made
under rule 35(3) of the Detention Centre Rules (ie the rule that requires that a
medical practitioner shall report to the manager on the case of any detained
person who he is concerned may have been the victim of torture).

Duty to Postpone Removal if UK Authorities Responsible for Deterioration in

Condition

Mitting J in the Administrative Court in Thompson (R on the application of) v

Secretary of State for the Home Department [2008] EWHC 107 (Admin) (14
January 2008) found it was arguable, where the UK authorities might be
responsible for a deterioration in a detainee’s condition, that they were under a
duty to procure an improvement in her medical condition before removing her.

Reasons must be given for Detention; but Detention pending Lengthy Test Case
Litigation is Lawful

Munby J in the Administrative Court in SK, R (on the application of) v Secretary
of State for the Home Department [2008] EWHC 98 (Admin) (25 January 2008)
repeated the judicial view that a failure to give reasons for detention to a detainee
was non-compliance with rule 9(1) of the Detention Centre Rules 2001, and also
a breach of the fundamental constitutional principle that notice of a decision is
required before it can have the character of a determination with legal effect. It is
for the Secretary of State to prove that detention is lawful, not for a detainee to
prove that it is unlawful. Where the Secretary of State has throughout been intent
upon removing a detainee at the earliest possible moment following the
completion of test case litigation, notwithstanding that that litigation has
proceeded for much longer than anyone would have anticipated at the outset,
there remained at least some prospect of achieving removal. So it will not be
possible to show that the detention of Zimbabweans is unlawful simply on
account of the pending test cases.

76 Hour Delay in giving Reasons for Detention Unlawful

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In Saadi v United Kingdom in the Grand Chamber (Application no. 13229/03; 29
January 2008) the European Court of Human Rights found that a delay of 76
hours in providing reasons for detention was not compatible with the requirement
of the provision that such reasons should be given “promptly”. Detention of
asylum seekers for considering their asylum claims in a fast track process was
generally permissible, though.

Disability Discrimination Act applies to Detention Centres

In Gichura v Home Office & Anor [2008] EWCA Civ 697 (20 May 2008) the Court
of Appeal held that functions arising from detention such as the provision of
facilities, bedding, and medical services were the provision of services as much
as they were the carrying out of government functions (which were excluded from
the scope of the Act) and so fell under Section 19 of the Disability Discrimination
Act.

In K (R on the application of) v Secretary of State for the Home Department

[2008] EWHC 1321 (Admin) (16 May 2008) the Administrative Court found that
detention on the grounds of removal being "imminent" could not be justified
where it was to be four weeks or so before any removal directions were set.

2. HUMAN RIGHTS
“Insurmountable Obstacles” not the Whole Story

In VW and MO (Article 8-insurmountable obstacles) Uganda [2008] UKAIT 00021

(14 March 2008) the Tribunal considered the “insurmountable obstacles” test (ie
the test for determining whether family members with permission to remain in the
UK can be expected to relocate with an immigrant who lacks status). They noted
that it was not essential to show the “insurmountable obstacles” in every case, for
to do would be contrary to the approach of the European Court of Human Rights
which required the striking of a fair balance between the immigrant's rights and
interests and the interests of the state or wider community. If there are no
insurmountable obstacles or serious difficulties in the way of family members
accompanying an applicant abroad, special reasons need to be shown for why
an adverse decision is not to be considered proportionate. Sedley LJ in the Court
of Appeal in LM (Democratic Republic of Congo) v Secretary of State for the
Home Department [2008] EWCA Civ 325 (17 March 2008) defined the question
as being whether, realistically, the obstacles against relocation are is able to be
surmounted: there is no requirement that there be some insuperable or
insurmountable obstacle to the reunification of the immediate family in the
country of origin before Article 8 is engaged or, if engaged, is violated.

Delay must have Substantial Effect in an Article 8 Case – but need not be a
Public Disgrace

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In FK (Democratic Republic of Congo) v Secretary of State for the Home
Department [2007] EWCA Civ 1545 (14 December 2007) the Court of Appeal
found that unreasonable delay in decision making on the part of the Home Office
was to be taken into account along with other relevant factors in deciding if it was
disproportionate to interfere with family life, including the need to maintain public
confidence in the fairness of the system when a ruling is being made on
proportionality: the degree of administrative delay has to be substantial if it is to
tip the balance in the immigrant’s favour, especially if the applicant's private
and/or family life have not changed significantly during that passage of time.
There was no need for the delay to constitute a "public disgrace" – which is
important, because some Tribunals rely on the use of that phrase in Akaeke v
Secretary of State for the Home Department [2005] EWCA Civ 947 in order to
downplay the delay in a particular case.

Risk that Diplomatic Assurances from Libya would not be honoured

In Othman v Secretary of State for the Home Department [2008] EWCA Civ 290
(9 April 2008) the Court of Appeal considered the vexed questions of diplomatic
assurances (ie the situation where a state abroad promises not to torture
someone if they are returned there), reiterating their position that it is a matter for
a judgement on a case-by-case basis as to whether diplomatic assurances can
be relied on. In AS & DD (Libya) v Secretary of State for the Home Department &
Anor [2008] EWCA Civ 289 (09 April 2008) the Court found that whereas it could
be concluded that Libya would probably keep its word not to torture a returnee,
there was a risk that it would not, making returns there unlawful even in the
presence of such assurances.

Trials where there is a Risk of Reliance on Evidence gained from Torture breach
Article 3 ECHR

In Othman the Court reminded itself that the European Convention on Human
Rights has an absolute rule that evidence obtained by torture cannot be
admissible in any circumstances, and if the foreign state has a rule that admits
such evidence, that rule is simply unacceptable in Convention terms: it would be
a breach of the prohibition on torture (ECHR Art 3), not just a breach of the right
to fair trial (ECHR Art 6). The decision is an important reminder to legal
representatives to investigate whether a foreign state has procedural rules that
permit evidence obtained from torture to be relied upon in any trial that their client
might face.

Disability Discrimination Law not Usually Applicable

In NM (Disability discrimination) Iraq [2008] UKAIT 00026 (25 March 2008) the
Tribunal ruled that although the Disability Discrimination Act makes various
provisions against discrimination on account of disability, it provides no benefits
to the family members or carers of disabled people. Not for the first time of late,

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the Tribunal considered that Arman Ali (the oft-cited comments of Collins J in that
case suggested that an exclusion of third party support would be a
disproportionate interference with the right to family life) should be regarded as
having little or no current application given changes in the immigration rules since
that decision.

Adopters should consider Application for Limited Leave for Purpose of Adoption

In MN (India) v Entry Clearance Officer & Secretary for State for the Home
Department (as interested party) [2008] EWCA Civ 38 (5 February 2008) the
Court of Appeal found that it was highly relevant to consider that family life
between the child and the potential adopters in the UK had begun in
circumstances in which the appellant lived entirely abroad and that the British
sponsors were present there only for periods of time, and that in so far as the
arrangements made by them for her on that basis had proved beneficial for the
appellant, the refusal of entry clearance would not preclude a continuation of
family life at that level. Any argument that relied on the best interests of a child
should be supported by professional enquiries including a professional appraisal
of the adopters’ home and, more importantly, of their personalities, relationship
and background history. The untried possibility of making an application under
paragraph 316A of the immigration rules (for limited leave to enter for the
purpose of being adopted) was relevant to proportionality, because it provided at
least one route to achieving entry to the United Kingdom under the Immigration
Rules.

3. REFUGEE AND OTHER INTERNATIONAL

PROTECTION LAW
Armed Conflict

In KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023 (25

March 2008) the Tribunal considered the circumstances that the problems arising
from “armed conflict” might give rise to Humanitarian Protection under article
15(c) of the Refugee Qualification Directive as incorporated into English law by
rule 339C(iv) of the immigration rules. That rule states that Humanitarian
Protection will given where an asylum seeker faces a real risk of serious harm on
a return to their country of origin, serious harm including “serious and individual
threat to a civilian's life or person by reason of indiscriminate violence in
situations of international or internal armed conflict.” They found, following a
concession by the Secretary of State, that the whole territory of Iraq (including
the Kurdish Regional Government area) is in a state of armed conflict (the
Tribunal found in HH & others (Mogadishu: armed conflict: risk) Somalia CG
[2008] UKAIT 00022 (28 January 2008) that Mogadishu, though not the rest of
Somalia, was in a state of armed conflict).

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In KH the Tribunal find that the matters to be investigated in determining whether
there is an internal armed conflict salient issues are firstly whether there are
"parties to the conflict"; secondly their "degree of organization”; thirdly the "level
of intensity" of the conflict (which has to be higher than "situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence,
or other acts of a similar nature" (Article 1(2) of Additional Protocol II)); and
fourthly the "protraction" of hostilities. There may also be "other relevant factors".

The Tribunal go on to find that that the difference between protection under rule
339C(iv) and the other forms of Humanitarian Protection is that the “armed
conflict” provision is constructed a lesser form of harm than actual harm: a threat
of harm. However, they then come to some conclusions that mean protection
under this provision will be rare unless the requirements of refugee status or
Humanitarian Protection due to a risk of inhuman or degrading treatment or
punishment are made out. They find that the only forms of harm protected
against will be threat to life and person akin to murder, mutilation, cruel treatment
and torture. The requirement that civilians are only protected against serious and
individualised threats means that they must generally face a real risk of serious
harm personal to them, something relating to the person’s specific characteristics
or profile or circumstances. And the fact that protection is against “indiscriminate
violence” means that only violence that is directed against civilians rather than
military targets, and not criminal violence, can be included in determining whether
the provision is in operation. For these reasons the Tribunal in KH Iraq (and
indeed the Tribunal in HH Somalia) conclude that the conflict in question does
not cause the provision’s protection to come into play.

Refugee Status based on Objection to a State Committing Human Rights

Violations

In BE (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 540
(20 May 2008) the Court of Appeal found that an order to plant anti-personnel
mines in roadways was an order to commit a grave violation of human rights, and
hence was itself a gross violation of human rights. A state which takes actions
that can foreseeable rob people of the right to life without any justification beyond
the state's perceived self-interest is committing a grave breach of human rights.
A person who objected to such actions could be a refugee.

In HH (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 504
(14 April 2008) the Court of Appeal recognized that ECHR Art 6 arguably applied
to refugee status appeals given that the Refugee Qualification Directive created a
right to asylum in European Union law.

Fresh Claims and the One Year Wait to Work

In R (Omar) v Secretary of State for the Home Department [2008] EWHC 206
(Admin) (30 January 2008) the Administrative Court found that the making of

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what purports to be a fresh claim does not constitute a claimant as an asylum
seeker for the purpose of Council Directive 2003/9/EC of 27th January 2003 (and
therefore a person who may apply to the Secretary of State for permission to take
up employment if a decision at first instance has not been taken on their
application within one year of the date on which it was recorded). It is only once
that claim has been determined to indeed be a fresh claim that the one year
period leading to work permission runs.

No Obligation to inform Third Country of Return to Country of Origin

In Chen, R (on the application of) v Secretary of State for the Home Department
[2008] EWHC 437 (Admin) (02 March 2008) the Administrative Court found that
an asylum seeker does not have the right to be informed that the Dublin
Regulation is to be invoked against them, and that the Secretary of State was not
under an obligation to inform a third country of an asylum seeker’s claimed return
to their country of origin (a feature of their history that might raise a question as to
whether the UK or the third country was truly responsible for the case).

Denial of Return to the Stateless not Persecution

In MA (Palestinian Territories) v Secretary of State for the Home Department

[2008] EWCA Civ 304 (9 April 2008) the Court of Appeal found that it is not
persecution to deny a stateless person re-entry to "the country of his former
habitual residence", for such a denial does not interfere with a stateless person's
rights in the way that it does with the rights of a national. The lot of a stateless
person is an unhappy one, but to deny him a right that he has never enjoyed is
not, in itself, persecution. This is to be contrasted with the situation in EB
(Ethiopia) v The Secretary of State for the Home Department [2007] EWCA Civ
809 (31 July 2007) where a State by arbitrary executive action deprives a citizen
of their citizenship, which does away with that citizen's individual rights which
attach to their citizenship, leaving them unable to vote, to leave the country or
even to work.

Activities in the UK likely to come to Attention of Security Services of Country of

Origin

In YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ
360 (15 April 2008) the Court of Appeal found that Article 4(3)(d) of the Refugee
Qualification Directive requires the decision maker to assess whether activities
carried out in the UK will expose the applicant to persecution or serious harm if
returned. It was unreal to seek positive evidence that the authorities had "the
means and the inclination" to monitor such activities as a demonstration outside
their embassy, or that they would be able to identify the appellant from
photographs of the demonstration: the real question will be what follows for the
individual claimant upon their identification.

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Trafficking Victims a Particular Social Group

In SB (PSG, Protection Regulations, Reg 6) Moldova CG [2008] UKAIT 00002

(26 November 2007) the Tribunal found that individuals (from Moldova) who have
been trafficked for the purposes of sexual exploitation are reasonably likely to be
perceived as being different by the surrounding society if the fact of their
trafficking in those circumstances is known to the surrounding society. More
broadly, in cases where the members of a social group share a common
background which is an immutable characteristic which they cannot change (for
example, a common past experience) or they ought not to be required to change,
it may be that this defines the group by giving it a distinct identity in the society in
question which has nothing to do with the actions of the would-be persecutors.

4. THE IMMIGRATION RULES

Immigration Rules on Dependant Relatives do not Include Separated Mothers

In MB (Somalia) v Entry Clearance Officer [2008] EWCA civ 102 (20 February
2008) the Court of Appeal found that it is impossible to read para 317(i)(a) of the
immigration rules as including separated mothers. It was not irrational for the
Secretary of State to take the view that the range of the class of separated
mothers is so wide that they should not be assimilated to widows. However the
Secretary of State should give further consideration to the position of divorced
parents aged 65 or over whose position is for practical purposes very similar to
that of widows and widowers.

Immigration Rules to be given Ordinary Meaning

MB (Somalia) also contains important reasoning on the approach to construction

of the immigration rules in the light of human rights appeals. In determining the
rationality of a rule it is relevant that there is a free-standing right of appeal
against immigration decisions on human rights grounds. Warning against
arguments that try to strain the wording of the rules, Laws LJ stated that a
purposive construction could not be employed so as to defy contradicts the
Rule's ordinary language (barring cases where the language seemed mistaken or
eccentric).

Dishonesty not Fatal to Long Residence Application

In BA (Algeria) v Secretary of State for the Home Department [2008] EWCA Civ
37 (7 February 2008) the Court of Appeal found that it was not necessarily
against the public interest to give indefinite leave to remain on the ground of long
residence to someone who had, during their stay here, assumed a false identity
and National Insurance number which they used in order to work. The decision is
an important counterweight to MO (Long residence rule-public interest proviso)
Ghana [2007] UKAIT 00014 (09 February 2007), which is often cited by the

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Home Office as showing that dishonesty in the course of someone’s immigration
history is something that counts against their being granted leave to remain
under the “long residence” rule.

Adoptions must be Recognised and take into account the Hague Convention;
and Adopters must be assessed for Suitability by Local Authorities

MB India (already mentioned above, in the human rights section) also addressed
questions regarding entry clearance for children for adoption. The Court stressed
that an adoption would have to be in a country whose adoption orders are
recognised by the United Kingdom – which for this purpose are (apart from
China) those designated in the Schedule to the Adoption (Designation of
Overseas Adoptions) Order 1973 (S.I. 1973/19). British residents wishing to bring
a child habitually resident abroad into the country for the purposes of adoption
under immigration rule 316A for the purpose of adopting her (other than under
the Hague Convention) are required, on pain of otherwise committing a criminal
offence, to apply in writing to their local authority for an assessment of their
suitability to adopt her. Paragraph 316D of the Rules provides for such a child to
be granted limited leave to enter the U.K. with a view to settlement as a child for
adoption in the U.K. under the Hague Convention, which requires that an
adoption in a country abroad be made after that country’s ratification of the
Convention.

Disability Living Allowance can be used for Maintenance

In MK (Somalia) v Entry Clearance Officer [2007] EWCA Civ 1521 (28 November
2007) the Court of Appeal, by a majority, found that an individual seeking Entry
Clearance is able to rely on money paid to the sponsor by way of Disability Living
Allowance as being available for their maintenance. The sponsor was legally free
to spend or save such funds as she chose and so if she chose to spend the
allowance on the maintenance of her entrant spouse, so long as the sum was
adequate, the spouse abroad was being maintained without additional recourse
to public funds.

Deportation – Delay in Making Decision to Deport is Relevant

Deportation cases begun to reach the Court of Appeal.

In Yousuf v Secretary of State for the Home Department [2008] EWCA Civ 394
(23 January 2008) the Court of Appeal found that a delay between the last
conviction and the making of a decision to deport needed express attention in the
balancing exercise.

Rape calls for Deportation absent the Most Pressing Compassionate Factors

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In RE (Turkey) v Secretary of State for the Home Department [2008] EWCA Civ
249 (22 January 2008) Laws LJ stated that ordinary humanity dictated that rape
is a crime which causes much revulsion in the mind of right-thinking people.
Public policy calls for the deportation of rapists: only the most pressing
compassionate factors will be capable of tilting the balance the other way.

Immigration Judges must take into Account view of Secretary of State on

Seriousness of Crime

In OP (Jamaica) v Secretary of State for the Home Department [2008] EWCA Civ
440 (1 May 2008) the Court found that given the Secretary of State’s position that
the public interest required certain crimes of violence to warrant deportation, that
assessment had to be taken as a given, unless palpably wrong, and so it was
doubtful that an immigration judge to evaluate should evaluate the seriousness of
such offences. In OH (Serbia) v Secretary of State for the Home Department
[2008] EWCA Civ 694 (30 April 2008) the Court of Appeal stressed that as the
Secretary of State has primary responsibility for the public interest, a Tribunal
hearing an appeal against a decision to deport should itself consider the public
interest in deportation but should also weigh the approach to the public interest
adopted by the Secretary of State in the context of the facts of the case.

Crimes normally unsuitable for Deportation; Differing from a Recommendation as

to Deportation by a Sentencing Judge

In EO (Turkey) v Secretary of State for the Home Department [2008] EWCA Civ
671 (16 May 2008) the Court of Appeal found that the Tribunal was entitled to
have regard to the statement of policy made by the Secretary of State in the
House of Commons on 25 July 2006 that deportation would not normally be
appropriate “where people have been given a custodial sentence … at present it
is one year for non-European economic area nationals and two years for EUA
nationals”. But where there had been a recommendation for deportation it was
possible that the offence itself may merit a mild sentence but for there
nevertheless to be a real risk to the public which made the offender's continued
presence in the UK undesirable. It was always imperative that the AIT explain
why it differed from the conclusions of a sentencing judge who had
recommended deportation.

Deportation - Spent Convictions normally Inadmissible

Meanwhile the Tribunal found, in AA (Spent convictions) Pakistan [2008] UKAIT

00027 (25 March 2008), convictions that are “spent” for the purposes of the
Rehabilitation of Offenders Act 1974 should not normally be the subject of
reference in appeals before the Tribunal. It was for the Home Office to satisfy an
immigration judge that justice cannot be done in the case except by admitting or
requiring evidence relating to a person's spent convictions.

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Highly Skilled Migrant Programme Changes Unfair and Illegal

In November 2006 changes to the Highly Skilled Migrant Programme (HSMP)

increased the number of points that persons with leave to remain under the
HSMP needed to continue to remain within the Programme. These changes
applied retrospectively so ruling out some migrants who had hitherto thought they
could look forward to making their homes in the UK. In R (HSMP Forum) v
Secretary of State for the Home Department [2008] EWHC 664 (Admin) (8 April
2008) the Administrative Court found that the terms of the HSMP contained a
clear representation by the Home Office that once a migrant had embarked on
the scheme he would enjoy the benefits of the scheme according to the terms
prevailing at the date he joined. There was no sufficient public interest which
outweighed the unfairness visited upon those already admitted under the HSMP.
The terms of the original scheme should be honoured. Good administration and
straightforward dealing with the public required this: to fail to restrain the impact
of the changes would give rise to conspicuous unfairness and an abuse of power.

Work Permit Changes Lawful

The Administrative Court took a different view regarding the changes to the work
permit scheme in Ooi (R on the application of) v Secretary of State for the Home
Department [2007] EWHC 3221 (Admin) (18 December 2007), rejecting a
challenge to the changes to the work permit scheme. Whereas immigrants might
have been told that they could apply for indefinite leave to remain after four
years' residence, no explicit or unequivocal statement was made that their
application would be granted or that no change might be made to the Immigration
Rules before that four years was up. The changes reflected Ministerial decisions
on important matters of policy which affected very many people and the social
cohesion of the United Kingdom as a whole.

No Third Party Support for Working Holidaymakers

In TS (Working Holidaymaker: no third party support) India [2008] UKAIT 00024

(20 March 2008) the Tribunal found that working holidaymakers could not rely on
third party support. They added that an applicant should be able to give a
credible reason for his decision to take an extended holiday, and if that reason
included an intention to develop skills, they could be expected to identify the skills
in question, how they might expect to be developed, and their planned future use.

Immigration Rules – Changes Apply to all Applications outstanding when they

Enter Force

In Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308
(10 April 2008) the Court of Appeal found that the maker of the immigration rules
intended them to apply to decisions made from the time they were implemented.
There were numerous warnings against treating the rules as delegated legislation

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of the kind that falls within the terms of the Interpretation Act 1978, which might
have brought with it a presumption against retrospectivity.

Accommodation – Can be provided by Third Party

The Tribunal has recently examined questions arising from the accommodation
element of the immigration rules. In AB (Third-party provision of accommodation)
[2008] UKAIT 00018 (6 February 2008) they found that whereas, in order to meet
the maintenance requirements, the parties need to show that a certain amount of
money will be available to them from their own work or resources (broadly
speaking what would be available to a similar family on Income Support, net of
housing costs), so far as accommodation is concerned they need to show that
they will have a home that they will be able to call their own however that home is
provided. An Immigration Judge who is persuaded that there is a stable
arrangement for accommodation which is otherwise adequate and exclusive
should not dismiss an appeal simply on the basis that the accommodation is to
be provided by a third party.

Accommodation – No need to Own, and may be Shared

In KJ (“Own or occupy exclusively”) Jamaica [2008] UKAIT 00006 (16 January

2008) the Tribunal looked at the meaning of the phrase "occupies exclusively" in
the Immigration Rules. They found that the question it implied was whether there
is somewhere that the person or people in question can properly, albeit without
any legal accuracy, describe as their own home. It may be the case that they do
not own it; and they may share it; but it should be adequate for them, be in a
defined place, and be properly regarded as where they live, with the implications
of stability that that phrase implies.

Applications refused only under the “General” Grounds – on Appeal the whole
Rule falls for Consideration

In JF (Para 320 refusal; substantive rule?) Bangladesh [2008] UKAIT 00008 (08
January 2008) the Tribunal considered the proper approach to take in cases
where the Entry Clearance Officer (ECO) wrongly invoked the general grounds
for refusal, and then did not go on to consider the substantive immigration rule.
They found that in such a case, subject to the requirements of fairness, the
Immigration Judge should proceed to decide the case under the substantive rule
on the evidence presented at the hearing. The Tribunal recognised that it might
be unfair in an out of country case where, through no fault of the Appellant, the
ECO has retained relevant documentation submitted with the application which
cannot therefore be presented at the hearing of the appeal. In order to succeed in
the appeal outright on the substantive rule, the Appellant must satisfy all of its
requirements, or the appeal will be dismissed. Where the Immigration Judge
considered that only some of the requirements of the Rule could be dealt with, it
might well be correct only to look at those requirements and to make findings in

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relation to them: if such findings are all in favour of the Appellant, the appeal will
be allowed to that extent with a direction that the decision-maker should continue
to consider the Appellant’s application in accordance with the findings made by
the Judge.

No Third Party Support for a Student’s Dependants

In PA (Student's family: third-party support?) Bangladesh [2008] UKAIT 00016 (4

March 2008) the Tribunal found that whereas a person who comes as a student
may well have the benefit of third party support for himself, by way of a
government grant, scholarship or provision from parents or relatives, the
considerations applying to a spouse are different: so a student’s spouse could
not rely on third party support.

5. EUROPEAN LAW
Dependant Relatives must have been Dependant on EEA National in EEA State,
not simply in the Country of Origin

In KG (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA
Civ 13 (25 January 2008) the Court of Appeal considered the situation of
dependant relatives (other than direct family members) joining individuals
exercising European Community Treaty rights. They found that free movement
rights attach only to movement within the European Community. The relationship
of dependency should have existed in the country from which the Union citizen
has come, and have existed immediately before the EEA national left for the UK
to exercise their Treaty rights, which pointed towards the relative coming to the
UK from another EEA state. Relatives must either come with the Union citizen
when the EEA national is exercising their rights or join them here. This has the
consequence that the requirement that the dependant relative has been resident
in another EEA state, found within the Immigration (European Economic Area)
Regulations 2006, is lawful. Buxton LJ noted that regarding household members,
the Citizens’ Directive requires the other family member to have been, in relation
to the Union citizen, under his roof, not under the same roof (implying that the
issue is ownership of residential property rather than co-habitation).

Working Holidaymakers and Au Pairs enjoy Ankara Agreement Rights as

Workers

In Payir and Ozturk v Secretary of State for the Home Department (Case C-
294/06; 24 January 2008) the European Court of Justice considered whether
Turkish students and au pairs were workers such as to enjoy the benefits of the
Ankara Agreement, finding that as they carried out activities that made it
appropriate for them so to be categorised, and finding that they were also duly
registered as belonging to the labour force, and in legal employment. The fact
that they entered as students in order to pursue a course of studies or as au pairs

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with the aim of mastering the language of the host Member State was immaterial
to this.

Deportation of EEA Nationals – Meaning of “Imperative Grounds”

In LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190
(18 March 2008) the Court of Appeal considered what are the “imperative
grounds of public security” which are the only basis for expulsion of an EEA
national who has been in the UK for ten years (the same test applied for any EEA
national minor). Sending the matter back to the Tribunal for more consideration,
they noted that the word "imperative", as a distinguishing feature, connotes a
very high threshold, and that an actual risk to public security, so compelling that it
justifies the exceptional course of removing someone who has become
integrated by many years residence in the host state, was required.

Meaning of Serious Health Grounds for Carers

In TR (reg 8(3) EEA Regs 2006) [2008] UKAIT 00004 (28 December 2007) the
Tribunal considered the provision under which a third country national can remain
in the UK to receive care from a relative who is an EEA national (or the spouse or
civil partner of such an EEA national). They found that the use of the word
“serious” requires the “health grounds” to go well beyond ordinary ill health. In
practice applications should be accompanied by detailed medical evidence.
Personal care means care which relates to the day to day physical tasks and
needs of the person cared for and to mental processes related to those tasks and
needs; the word “strictly” imported a need for complete compliance or exact
performance and reinforced the need for personal care to be provided on a day
to day basis.

Three Months Residence as EEA Nationals for Accession Countries

In EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017 (06 March 2008)
the Tribunal noted that a Bulgarian or Romanian national was entitled to three
months residence in the United Kingdom from the moment of Accession but such
a person who did not seek to rely on their nationality at that moment could not
claim a right of residence for three months that began when his leave to enter
expired.

Marriages of Convenience: Burden of Proof on the Applicant

In IS (marriages of convenience) Serbia [2008] UKAIT 00031 (11 April 2008) the
Tribunal found that the applicant’s general duty to prove their case includes a
duty to prove that a marriage is not one of convenience.

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 6. JUDICIAL PROCESS
No Suspensive Right of Appeal against Revocation of Deportation Order

In Etame & Anor (R on the application of) v Secretary of State for the Home
Department [2008] EWHC 1140 (Admin) (23 May 2008) the Administrative Court
looked at the right of appeal against revocation of a deportation order and found
that the “in-country” right was to be given only where there was a nexus between
the immigration decision formally generating the appeal and the representations
or application that the immigration decision was responding to: so a historic
human rights or asylum claim did not bring the protection of a suspensive right of
appeal.

Adjournment Applications – Must not be Prejudged

In AM (Cameroon) v Secretary of State for the Home Department [2008] EWCA

Civ 100 (20 February 2008) the Court of Appeal stressed the importance of an
immigration judge not making up their mind to refuse to reconsider a decision on
an adjournment application without hearing argument in the light of a change in
circumstances. An unfair hearing, and one that possibly should never have taken
place before the particular immigration judge, should not count as a hearing at all
so as to bring into play the guillotine that section 103A imposes: so judicial review
might still be available in such a case notwithstanding the failure of an application
for statutory review.

Home Office Duty to Serve Determination when Seeking Reconsideration

In RN (rule 23(5): respondent’s duty) Zimbabwe [2008] UKAIT 00001 (04 January
2008) the Tribunal found that the requirement in rule 23(5)(a)(i) of the Asylum
and Immigration Tribunal (Procedure) Rules 2005 must be read as a requirement
that the respondent, in order for a Home Office reconsideration application to be
valid, (in cases other than personal service) must send or deliver the
determination not later than the date on which the section 103A application is
made, regardless of when (or, indeed, whether) the determination is received.

Appeals – “In Accordance with the Law” includes Legitimate Expectation

In AA and Others (Highly skilled migrants: legitimate expectation) Pakistan [2008]

UKAIT 00003 (21 December 2007) the Tribunal found that their jurisdiction under
section 84(1)(e) of the Nationality Immigration and Asylum Act 2002 to evaluate
grounds of appeal based on a decision being "otherwise not in accordance with
the law" encompasses challenges to immigration decisions on public law
grounds, including procedural fairness and legitimate expectation.

Research after the Hearing Unfair

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In EG (post-hearing internet research) Nigeria [2008] UKAIT 00015 (26 February
2008) the Tribunal stressed that decisions on factual issues should be made on
the basis of the evidence presented on behalf of the parties and such additional
evidence as the parties are aware will be taken into account. It was wrong to
base conclusions on internet research conducted post-hearing without giving the
parties the opportunity to comment on it.

Right of Appeal against Cancellation of Entry Clearance

In GO (Right of appeal: ss 89 and 92) Nigeria [2008] UKAIT 00025 (25 March
2008) the Tribunal found that there was a right of appeal against cancellation of
entry clearance, albeit exercisable from abroad.

Interpreter must not Determine Controversial Issue

In AA (Language diagnosis: use of interpreters) Somalia [2008] UKAIT 00029 (25

March 2008) the Tribunal emphasised that was not part of the function of the
court interpreter to resolve an issue such as dialect. It was very undesirable for
the interpreter as a Court official to be asked to contribute in any way to the
determination of a contested issue, for they needed to have the confidence of
everyone in Court.

7. EVIDENCE
Eurodac and Fingerprints in Asylum Appeals

In RZ (Eurodac, fingerprint match, admissible) Eritrea [2008] UKAIT 00007 (28

January 2008) the Tribunal found that fingerprint evidence from the Eurodac
system is admissible in evidence not only when considering which member state
is responsible for examining the application for asylum but also generally as part
of the examination of the claim. Evidence of a match produced through the
Eurodac system and confirmed by the Immigration Fingerprint Bureau should be
regarded as determinative of that issue in the absence of cogent evidence to the
contrary. As a matter of fairness and natural justice an appellant should have the
opportunity of obtaining and calling his own evidence in rebuttal.

Medical Evidence and Istanbul Protocol

In RT (medical reports, causation of scarring) Sri Lanka [2008] UKAIT 00009 (07
February 2008) the Tribunal emphasised the need for Immigration Judges to fully
appreciate the potential significance of a medical report that applied the Istanbul
Protocol criteria: but they noted that reports would be given less weight where the
Doctor had failed to expressly consider alternative causations to that put forward
by the patient.

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