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More reported tribunal cases

More reported tribunal cases

I’m a bit behind on tribunal determination updates, but here’s the latest batch of diktats reported cases. The first is interesting, the others somewhat less so, in that they do not seem to have a great deal of broader application. The reporting of the Khalid and Others case seems downright bizarre, though, being as none of the appellants were played any part in the proceedings. It is difficult to see how, in an adversarial system where the tribunal has no investigative powers or resources of its own and is therefore dependent on the parties, it can be right that such a case becomes one of these bizarre, arguably unlawful, factual precedents for other cases.

E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC)

(i) The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii) Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case.

(iii) During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian.  Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

(iv) Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v) The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

Abiyat and others (rights of appeal) Iran [2011] UKUT 00314(IAC)

There is a right of appeal to the First-tier Tribunal under s.83 of the Nationality, Immigration and Asylum Act 2002 against a refusal of asylum triggered by a subsequent grant of more than one year’s leave to remain, even if there has been a previous unsuccessful asylum appeal.

There is a right of appeal to the Upper Tribunal against a decision of the First-tier Tribunal declining jurisdiction, when that decision has been made after full consideration and is embodied in a determination.

Owolabi (Tier 2 – skilled occupations) Nigeria [2011] UKUT 00313(IAC)

The relevant provisions of the Immigration Rules dealing with Tier 2 (General) Migrants, were first laid before Parliament on 4 November 2008 and came into effect on 27 November 2008. The fact the UKBA list of skilled occupations, which is referred to in paras 69 and 82 of Appendix A to the Rules,  was not placed on UKBA’s website until 28 November  i.e. 24 days after Appendix A was laid before Parliament, together with the fact that such a list was capable of being amended by the Secretary of State, means that reliance by the respondent on the requirements set out in para 69 was unlawful: Pankina [2010] EWCA Civ 719 and R (on the application of Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681 applied. (This decision does not address the implications of the amendment made to para 69 by HC382 which came into effect on 12 August 2010.)

Khalid and Others (Ealing, West London and Hammersmith College) Pakistan [2011] UKUT 00295(IAC)

1. Ealing, Hammersmith and West London College (EHWLC) has an online management and record keeping system called Centime, operated from 2003 and still in current use.  This system is so detailed, well operated and robust that evidence from EHWLC based on its records to the effect that a person made no application to the college, was not enrolled on a course there and was not awarded any qualification will, in general, be cogent evidence to that effect. Accordingly, it will in general be extremely difficult for a person who does not feature in the records to demonstrate that they were enrolled at EHWLC and studying there at the relevant time.

2. Evidence of academic achievement at EHWLC, relied upon by those claiming to have studied there, including certificates, results sheets and course work claimed to have been submitted for assessment, will, in general, include a student’s unique data number, assigned to him or her under the Centime system and the absence of such a number is, accordingly, likely to be an adverse factor of substantial weight.

3. Genuine postgraduate diploma certificates issued by EHWLC will include a logo showing the full name of the college rather than a single campus or a combination of sites not reflecting the full name.

4. Postgraduate courses in Hospitality Management and in Business and Management are of eighteen months duration and any work placement arranged as part of a course will begin after the commencement of studies and not beforehand; the catchment area for the 2008 course Hospitality Management course was Mumbai and the intake in that year was from that city and its environs and not elsewhere.

Chomanga (binding effect of unappealed decisions) Zimbabwe [2011] UKUT 00312 (IAC)

The parties are bound by unappealed findings of fact in an immigration judge’s decision. It is therefore not open to the respondent following a successful and unchallenged appeal by an appellant to make a further adverse decision on the same issue relying on the same evidence as before unless there is evidence of fraud or one of the exceptions identified in para 35 of the judgment of the Court of Appeal in Secretary of State v TB [2008] EWCA 997 applies.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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