Human Rights

The government yesterday published a draft version of its immigration and citizenship Bill.  Back in February we reported the government’s Green Paper Path to Citizenship.  The consultation period announced then closed at the end of May.   The Bill’s consultation period now begins.  If the timetable announced in February is met the Bill will commence its passage through parliament at the end of this year. 

In B v Secretary of State for the Home Department [2008] UKHL 39 (one of four highly significant judgments issued by the House of Lords’ Appellate Committee on 25-6-2008) the issue was whether when somebody appeals against a decision to remove him or her from the UK and says that the decision violates his right to respect for family life protected by Article 8 of the European Convention on Human Rights (the “ECHR”) – is the effect of his removal on other members of his family relevant to the question of whether the decision is contrary to Article 8?  

In Maslov v Austria (Application no. 1638/03) the European Court of Human Rights, sitting as a Grand Chamber at the request of the Austrian government, decided the case of a young Bulgarian man who had been made the subject of an order excluding him from Austria for ten years.   Mr Maslov had won his case at first instance before the European Court sitting as a Chamber.  In its judgment released on Monday of this week  (23 June 2008) the Grand Chamber found by a majority of sixteen judges to one that the expulsion order was a breach of his rights protected by Article 8 of the European Convention on Human Rights.  

One of Gherson’s clients, a 10 year old girl living in Moscow and hoping to accompany her mother to the United Kingdom, has won her appeal against an Entry Clearance Officer’s (“ECO”) decision to refuse to allow her to come to the UK.  The ECO had refused the client’s application for entry clearance because he or she had not been satisfied that her mother had “sole responsibility” for the client’s upbringing.  The ECO has not sought to challenge the Asylum and Immigration Tribunal’s decision allowing the client’s appeal.  

Unlike other court hearings, when the witnesses in an immigration appeal have finished giving their evidence and the lawyers have completed their submissions to the Immigration Judge, the Judge generally “reserves” his or her judgment, which is called a  “determination”.   The determination is then dictated by the judge, typed up by the Asylum and Immigration Tribunal’s staff, and sent simultaneously to the Appellant and to the United Kingdom Border Agency (the “UKBA”).  (In appeals against the refusal of asylum there are special procedures whereby the determination is served by the UKBA on the Appellant).  

Solicitors at Gherson have secured a successful result in an appeal against a decision to remove one of their clients from the UK. The Secretary of State has not made any application for reconsideration of the determination allowing Gherson’s client’s appeal.  

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.