Human Rights

The entitlement of people whose asylum applications have failed but have not returned to their home countries (frequently because they cannot be returned) to receive treatment on the National Health Service without being charged for it was considered by Mr Justice Mitting in R on the application of A v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (11-4-2008).   As Mitting J noted early in his judgment:

Applications for asylum are usually made by people who have fled from the authorities in their home countries or from other “agents of persecution” from whom the authorities in their home countries cannot protect them.  However it is possible for people to become refugees after leaving their home countries.  This can happen because of things which they themselves have done which may caused the authorities in their home countries to regard them with hostility or because of events in their home countries whereby people who have the  asylum seeker's political or ethnic profile have become targeted.   Such people are called refugees “sur place”.  The circumstances of people who as a result of their own actions have developed a well founded fear of being persecuted in their home countries have always been seen as controversial.   

The new unified UK Borders Agency (which yesterday - 3 April 2008 - brought together Border, immigration, customs and visa checks) has updated its guidance to entry clearance officers to include both the new general grounds for refusal and the Secretary of State ’s concession announced in the House of Lords on 17 March 2008.

Last week the Secretary of State, via her representative Lord Bassam of Brighton in the House of Lords, made an important concession regarding the scope of the general grounds for refusal contained in the recent statement of changes in the immigration rules, HC 321.  

In a highly significant judgment the European Court of Human Rights has found that the proposed deportation of Nassim Saadi (a Tunisian national)  to Tunisia would breach Article 3 of the European Convention on Human Rights (the “ECHR”).  The order to deport Mr Saadi had been justified  by the Italian authorities as comprising  an “urgent measure to combat international terrorism”

On 6 February 2008 the government published the latest statement of changes in the immigration rules.  As expected the rules establish the new regime under which Tier one – the highly skilled tier of the points based system - will be implemented.  The regime commences on 29 February 2008, when any highly skilled foreign national who is currently working in the United Kingdom will have to apply under the new rules for an extension of their stay.  From 1 April 2008 highly skilled people in India wishing to enter the UK in that category will have to apply to enter the UK under the provisions of the new rules. By the summer the rules will apply to all highly skilled applicants for entry anywhere in the world.

In KG (Sri Lanka) and AK (Sri Lanka) [2008] EWCA Civ 13 (25 January 2008) the Court of Appeal considered Article 3 (2) of Council Directive 2004/38/EC.  The entire Directive has been implemented into the domestic law of the United Kingdom by the Immigration (European Economic Area) Regulations 2006.  

In SB (PSG - Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002 the Asylum and Immigration Tribunal had to decide whether the Appellant, a young Moldovan woman who had been trafficked into the United Kingdom was a refugee because she was a member of a “particular social group” (“PSG”).  She was trafficked so that she could be sexually exploited in the UK. 

The Highly Skilled Migrant Programme (HSMP) was introduced in January of 2002.  It enabled skilled and experienced workers from overseas to obtain entry to the United Kingdom, with a route to settlement in the UK.    The eligibility of people for entry was established by the awarding of points against a range of criteria, in particular each applicant’s work experience and qualifications in his or her country of origin.  At that time it operated as a policy outside the immigration rules, but in April of 2003 the programme was incorporated into the immigration rules at rule 135A to 135H Rule 135A (i) required applicants to possess a document issued by the Home Office which indicated that the applicant had achieved the necessary number of points. Applicants also have to intend to make the UK his or her main home, and to be able to maintain and to accommodate themselves and any dependants without recourse to public funds.  As for what was required for an extension of stay under the programme, rule 135D required that applicants had entered the UK under the programme and that they had: