A selection of recent media reports
I've quit my party, now I'm gunning for Hazel Blears
A TOP Liberal Democrat is quitting the party to stand as an independent in a bid to oust Salford MP Hazel Blears at the General Election. Joe ONeill made the shock decision to leave the Lib Dems, claiming he wanted to be free to speak his own...
Manchester Evening News (13-Dec-2009)
ROCKET-SHAPED MINARET SPARKS ROW
A DECISION to build a huge rocket-shaped minaret and two giant arches in the style of Muslim headscarves on one of Britains most historic streets is sparking outrage and risks escalating racial tension, according to community...
Daily Express (13-Dec-2009)
SHARIA LAW SNEAKED INTO LABOUR BUDGET
THE Treasury plans to rewrite Britains tax rules to usher in a new wave of Sharia law for the countrys financial...
Daily Express (13-Dec-2009)
MP's anger at plans for new Calais migrant centre
Plans to open a centre in Calais to help economic refugees have outraged the Conservative spokesman on immigration. Ashford MP Damian Green said: I think it is an insulting...
yourthanet.co.uk (12-Dec-2009)
Shop owner broke Gangmasters Licensing Act
, 06:30 Comment on this story A shopkeeper has admitted acting as an illegal gangmaster after he breached a law designed to protect agency workers. Kuldip Singh, 46, of Rivelin Park, Kingswood, was given a suspended prison sentence for supplying workers without holding a Gangmasters Licence, in the first..
This is Hull and East Riding.co.uk (12-Dec-2009)
Climate change already driving migration: IOM
Climate change is already forcing people to migrate, with most moving within their countries or to a neighbouring country, a report by the International Organization for Migration said...
The Independent (12-Dec-2009)
Arrangements for asylum-seekers are 'Kafkaesque'
A former cabinet minister has launched a scathing attack on the government's immigration system. Speaking in a Commons adjournment debate, Clare Short (Ind Lab, Ladywood) condemned a change in policy which forces people to make applications for asylum and financial support in...
ePolitix.com (12-Dec-2009)
Deportation looms for athlete who won gold for UK
Wheelchair-bound power-lifter to be sent back to...
The Independent (12-Dec-2009)
Middle-rank civil servant was paid £310,000 in just a year... double the PM's salary
Laughing all the way to the bank: Azad Ootam was paid £750 a day while he worked for UKBA Smiling cheerfully, this is Azad Ootam, a mid-ranking civil servant working for the border security...
The Mail On Sunday (11-Dec-2009)
50 years for family who sold 15 year-old girl for sex on Sheffield streets
A FAMILY who trafficked a 15-year-old girl into the UK and forced her to work as a prostitute on the streets of Sheffield were jailed today for a total of 50...
Yorkshire Post (11-Dec-2009)
Britain is divided by the price of a home
The row over expenses and bonuses is all about bricks and mortar. The voters have had...
Times Online (11-Dec-2009)
Germany returns Kurds to uncertain fate
Human rights groups say Germanys deportation of some failed asylum seekers to Syria leads to...
Middle EastOnline (11-Dec-2009)
Shock rise in serious crime
NEW figures show serious crime has risen sharply across Havering even though crime overall is down. The Metropolitan Police data has sparked concerns that organised criminals might be targeting the borough after it was revealed that: l Gun crime has soared 64 per-cent - with 41 incidents in the past 12...
Romford Recorder (11-Dec-2009)
Those who have no right to live here must be speedily removed, says Alan Johnson
As the debate over immigration rages, Home Secretary Alan Johnson sets out his views on illegal workers, border controls, and the benefits of migration LAST month, the UK Border Agency carried out 72 operations targeting immigration offenders in businesses and residential addresses across...
Wales Online (11-Dec-2009)
Migrant workers held in restaurant raid
Hexhams Diwan-E-Am restaurant was raided by officers from the UK Border Agency on Thursday as part of a nationwide...
Hexham Courant (11-Dec-2009)
Boris calls for all refugees to be given English lessons
Mayor Boris Johnson has launched a scheme to give all refugees English lessons to help them find...
Evening Standard (11-Dec-2009)
Pakistanis most likely to be turned down for UK visas
Pakistanis are more likely to be turned down for visas to visit the UK than any other nationals, figures show. Some 41% of family visitor visa applications from Pakistan were rejected in the last year, according to the Home Office...
BBC News (11-Dec-2009)
War on a class already taxed to the hilt
Two social groups have done very well since Labour came to power in 1997... the super-rich and the very poor. The past 13 years have seen an explosion in the take-home pay of investment bankers, hedge-fund managers and private equity...
Daily Mail (11-Dec-2009)
School bosses urge minister to drop plans
IMMIGRATION Minister Phil Woolas has been urged to drop proposals that threaten Devon's language school industry which is worth millions of pounds. The calls to shelve plans tightening up immigration rules for foreign students came during a meeting at Westminster attended by a representative...
This is Plymouth (10-Dec-2009)
Sharia law tribunal is proposed
Wales could get its first court based on Islamic law under proposals from a Muslim body, BBC Wales has learned. A Sharia law tribunal in Cardiff will help community relations and give some Muslims services they want, supporters have told the Dragon's Eye...
BBC News (10-Dec-2009)
Legal 8.37
Asylum - The Supreme Court Allows Repetitious Appeals
1 The new United Kingdom Supreme Court began to function from 1 October 2009 from the sumptuously refurbished Middlesex Guildhall on Parliament Square, opposite the Palace of Westminster. It took over the judicial function previously exercised by the House of Lords of being the final court of appeal for all courts in the United Kingdom. On 26 November it gave judgment in a case concerned with asylum which had started in the House of Lords.
2 The case, BA and PE v. Secretary of State for the Home Department combines two cases raising the same legal issue. Both claimants had failed in their appeals against deportation on asylum grounds. The Secretary of State made orders for their deportation and their attempts to have the orders revoked were unsuccessful. The claimants sought judicial review of the refusal to revoke the order on the ground in each case that they faced persecution if returned to their countries of origin, respectively Nigeria and Cameroon. In both cases previous applications for asylum had failed and appeals against refusal had been dismissed. In what follows I have written in the interests of simplicity only about asylum, but the same comments apply mutatis mutandis in relation to infringement of human rights, including the references to statutory definitions in the 2002 and 2006 Acts and in the Immigration Rules.
3 The applications for judicial review failed in the High Court and in the Court of Appeal. The case turned on the interpretation of section 92 of the Immigration and Asylum Appeals Act 2002, which governs the scope of appeals against immigration decisions which may be appealed in the United Kingdom. By section 92(4)(a) of that Act an immigration decision includes an appeal against an adverse decision on an asylum or human rights claim made and refused in the United Kingdom. Section 113(1) of the 2002 Act defines an asylum claim as a claim made by a person to the Secretary of State..that to remove the person from or require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention- i.e. that removal would involve returning the person concerned to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. In both cases the claim on asylum grounds under section 92(4)(a) was based on the same material as already considered and rejected when their asylum appeals were heard and dismissed.
4 The question of fresh asylum and human rights claims is dealt with by paragraph 353 of the Immigration Rules. Where a claim has already been considered and a fresh claim is made, the decision taker, whether Secretary of State, case worker or immigration judge, has to consider whether the evidence and submissions made in support of the claim are significantly different from the material that has been previously considered. Being significantly differentmeans that the evidence and submissions have not previously been considered and taken together with the earlier material create a realistic prospect of success, notwithstanding the previous rejection.
5 The question which the Supreme Court had to consider in deciding whether an appeal lay against the decision to deport was whether paragraph 353 was to be taken into account or not, i.e. did the fact that the material was repetitious prevent an appeal from being made. The words of the sections from the 2002 Act quoted in paragraph 3 above do not specifically exclude a repetitious appeal, but there was case law from the Court of Appeal based on an earlier Act containing identical wording, which had concluded that repetitious appeals were not to be taken into account.. This would seem to be a common sense interpretation, but unfortunately it was not accepted by the Supreme Court, which by a majority ruling based on a meticulous reading of the relevant statutory provisions and case law concluded that an appeal against deportation was not excluded simply because the material lodged in support did not disclose any new material as required by Paragraph 353.
6 This decision has to be regarded as a setback which militates against efficient immigration control. It means that a person against whom a deportation order has been made will always be able to appeal against that order and delay its execution by submitting a human rights or asylum claim, even though the material in support of that claim has already been submitted in support of an unsuccessful appeal. As noted, it was a majority of their lordships which reached the decision. Baroness Hale delivered a dissenting judgment and the following statement from her judgement is particularly telling:
This country is bound not to expel people in breach of their human rights or when they have a well-founded fear of persecution in their home country. We must of course have a fair system for deciding whether expulsion will be in breach of those obligations. An initial decision followed by an appeal system in this country is sufficient to do this. This country is not bound to allow people to make essentially the same claim time and again as a way of staving off their departure. [Emphasis supplied.]
7 In paragraph 3 above I have quoted the definition of asylum claim as it presently stands in section 113 of the 2002 Act. The majority of the Supreme Court chose to take a very literal view of that definition rather than adopt a more purposive interpretation which would have led to a result in keeping with the desirable result of a refusal to accept a repetitious appeal as a means of deferring or preventing the claimants expulsion from the United Kingdom. It is much to be regretted that the Supreme Court has failed in this instance to take proper account of the national and public interest in an effective system of immigration control and the avoidance as far as possible of a multiplicity of legal proceedings as a means of frustrating deportation. The fact that Baroness Hale, considering the same statutory provisions and case law, was able to reach an opposite conclusion to that of the rest of her colleagues, clearly indicates that such a conclusion was open to all the members of the court, but they chose not to take it.
8 A revised definition of asylum claim is contained in section 12 of the Immigration, Asylum and Nationality Act 2006:
asylum claim
(a) means a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee Convention, but -
(b) does not include a claim which, having regard to a former claim, falls to be disregarded for the purposes of this Part [of the Act] in accordance with the immigration rules. [Emphasis supplied.]
Unfortunately the section has not yet been brought into force, so the additional words highlighted are not yet part of the law. If they had been, the Supreme Court would have been bound to take account of them and would have reached a different conclusion. I do not know why section 12 has not yet been brought into force but clearly in view of Supreme Courts decision, the sooner that happens the better.
Harry Mitchell QC
Honorary Legal Adviser
Migration Watch
11 December, 2009
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