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Some cases… By Robert S. Donovan

A raft of cases has come out in the last week or so, so it is high time for a round up. I’ll start with two cases from the Court of Appeal followed by the headnotes from a series of mundane tribunal determinations. One wonders why some of these get reported but other more interesting determinations of more general application do not. I’ve been meaning to draft a post on this subject and this may spur me on.

Lee v Secretary of State for the Home Department [2011] EWCA Civ 348 provides a timely reminder that family life and the interests of children do not trump all other considerations. Or, perhaps more accurately, that the higher courts will not always intervene where an immigration judge reaches a view on the question of proportionality. The facts were somewhat unsympathetic in this case. Although there were two affected children, the Appellant had not cohabited with them for long and had an absolutely terrible immigration history and very serious criminal convictions. Lord Justice Sedley, who has more or less retired as of last week (any volunteers out there for a retrospective?), said this:

“The tragic consequence is that this family, short-lived as it has been, will be broken up for ever because of the appellant’s bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but whether it does so is a question for an immigration judge. Unless he has made a mistake of law in reaching his conclusion – and we readily accept that this may include an error of approach – his decision is final. In our judgment the immigration judge in the present case reached a permissible conclusion by means of a properly structured appraisal of the evidence, informed by a correct understanding of the legal importance of a child’s best interests. It follows that this appeal has to be dismissed.”

The case of Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333 is a highly technical discussion about in and out of country appeal rights. The background was very unusual and brings to mind the case of Mehran Karimi Nasseri, popularised in Tom Hanks film The Terminal. Suffice it to say that the Home Office attempted and failed to argue that there was no in country right of appeal against curtailment of ILR where the person is outside the United Kingdom.

Now to the batch of tribunal cases…

KG (Gurkhas; overage dependants; policy) Nepal [2011] UKUT 117 (IAC)

Neither the concession in Limbu [2008] EWHC 2261 (Admin) nor the judgment of Blake J can be regarded as giving any rights to an over-age dependant family member of a former Gurkha.

SI (variation/curtailment:human rights ground) Pakistan [2011] UKUT 118 (IAC)

In an appeal against a refusal to vary leave or a decision to curtail leave or a decision to vary leave such that an individual’s leave is effectively curtailed, there is a right of appeal on human rights grounds. There is nothing in SA (Pakistan) & Ors v SSHD [2010] EWCA Civ 210 which suggests to the contrary or which was intended by the Court to contradict its judgment in JM (Liberia) v SSHD [2006] EWCA Civ 1402.

Aleem (Pankina-Uplift for overseas earnings) Sri Lanka [2011] UKUT 120 (IAC)

The requirement by the respondent that an applicant for leave to remain as a Tier 1 (General) Migrant, whose last leave was as a Tier 4 (General) Student), must have physically  undertaken work in an overseas country for an uplift to apply to his earnings in that country, is imposed by Guidance only and is not contained in the Rules. Thus, in line with SSHD v Pankina [2010] EWCA Civ 719, this Guidance is ineffective to impose such an additional requirement.

CHH (Notices Regulations – right of appeal – leave to remain) Jamaica [2011] UKUT 00121 (IAC)

A person under the Nationality, Immigration and Asylum Act 2002 who has under the statute, only a restricted right of appeal, has, by reason of the Immigration (Notices) Regulations 2003, a right of appeal that is unrestricted as to time.

VB (Student – attendance and progress not equated) Jamaica [2011] UKUT 00119 (IAC)

In a student appeal, satisfactory progress cannot be assumed from a good record of attendance.

Mushtaq (clarity of judge’s decision) Pakistan [2011] UKUT 00122 (IAC)

It is wrong to allow an appellant’s appeal simply on the basis that some findings of fact are made in his favour, when those findings do not entitle him to further leave to remain in the capacity sought under the Immigration Rules. In such a case, the appeal should be dismissed under the Immigration Rules.

Adubiri-Gyimah and others (Post-study work – Listed institution) Ghana [2011] UKUT 00123 (IAC)

The requirement imposed by the Immigration Rules, Appendix A, Table 9, paragraph 2(a) on an applicant as a Tier 1 (Post-Study Work) Migrant relates to the status of the relevant institution at the time of study.

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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