Update: asylum & immigration

There have been a number of important changes since November 2006 in terms of both asylum and immigration practice.

Women and family as members of a particular social group

K v SSHD; Fornah v SSHD [2006] UKHL 46 confirmed the principles set out in the case of Shah and Islam v SSHD [1999] 2 AC 629 and, in particular, referred to the UNHCR 'Guidelines on International Protection: Gender-related Persecution' of May 2002 as being very helpful. The Lords stated that the two criteria that define a particular social group set out in the EU Directive 2004/83/EC are alternatives and not cumulative: either the group has an innate characteristic, common background or fundamental belief or characteristic, or the group has a distinct identity because it is perceived as being different. The Directive and the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 are to be interpreted accordingly.

The Lords held that persecution of an individual because of family membership is within the Convention even where the main family member is not persecuted for a Convention reason. This reverses the Court of Appeal decision in Quijano v SSHD [1997] ImmAR 227.

Highly Skilled Migrant Programme

The new enhanced point criteria for admission to the UK under the Highly Skilled Migrant Programme were announced on 7 November 2006 and took effect on 5 December 2006. The 'old' work experience, significant achievements, skilled partner and GP categories have been removed and the new attributes required are academic qualifications, previous earnings, age and previous study/work in the UK. Appendix 4 of HC 395, as amended by HC1702, sets out in detail the calculation of 'points for skills' to meet the number of points required under para 135Dii. Appendix 5 sets out the documents required to support an application.

New EU members

Bulgaria and Romania joined the EU with effect from 1 January 2007. The Accession (Immigration and Worker Authorisation) Regulations 2006 set out their nationals' entitlement to work. Nationals require authorisation until 31 December 2011 to be able to work and only have a right to reside while working in accordance with the authorisation. It is an offence to employ an accession worker who does not have authorisation. Removal directions in existence prior to 1 January 2007 cease to have effect as from that date.

Amended immigration rules

HC130 which took effect on 1 January 2007 amends the Immigration Rules HC395 to take account of the accession of Bulgaria and Romania to the EU.

Amended procedure rules and practice directions

The Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2006 and the Asylum and Immigration Tribunal (Fast Track Procedure) (Amendment) Rules 2006 came into effect on 14 November 2006. Most of the amendments to the original 2006 procedure rules are minor and practical; a couple are particularly significant:

• if an appellant has been granted leave to enter or remain in the UK (this includes those who were in the UK seeking asylum), an appeal can continue to be pursued if the appellant has claimed racial discrimination and/or wants to pursue an asylum appeal '“ provided in the latter case she or he has been granted leave for 12 months or more (rule 18); and
• the time for the Tribunal to hear an asylum appeal has been extended to 35 days (rule 23).

The Practice Directions were amended alongside the Procedure Rules, and these amendments came into effect on the same day. Again most are minor and practical, but some are significant:

• Detailed instructions of the criteria to be fulfilled by those instructing experts and the production of an expert report are set out. These are based on the Civil Procedure Rules although they are not as detailed and prescriptive. They should be read carefully and complied with to ensure that the tribunal places adequate weight on the content of the report (para 7, adding para 8A).
• Where, on reconsideration, a material error of law has been found, documentary evidence may be adduced at this stage, provided there is a good reason why it could not have been adduced earlier (para 11, amending para 14)
• Where a material error of law is identified at the first stage reconsideration hearing, a copy of the reasons for that finding are to be sent to the parties before the second stage hearing and those findings are to be incorporated in full in the second stage determination (para 10 amending para14) although where the parties are agreed there has been a material error that is all that needs to be recorded: see JA [2006] UKAIT 13.
• Asylum and human rights appeals lodged before 9 October 2006 are effectively deemed to include an appeal against the refusal of subsidiary protection (humanitarian protection as it is called by the Home Office); appeals lodged after 8 October 2006 have to specifically include such a ground for it to be considered.

Human rights

Human Rights grounds of appeal can now be pursued, even if removal is not imminent: JM v SSHD [2006] EWCA Civ 1402. Where an issue has not been raised in the grounds of appeal, for example, a policy or a particular immigration rule, this will nevertheless be a factor in the assessment of proportionality under Art 8: SK [2006] UKAIT 68.

The five-step approach identified in Razgar [2004] UKHL 27 was considered by the tribunal in WK [2006] UKAIT 70 in the light of developments since that case was decidedWK. Attention was drawn to the second question: will the interference have consequences of such gravity as potentially to engage Art 8? If an appellant cannot show this, the appeal fails at this stage. Gravity is neither equivalent to, nor as high as, the proportionality test in the fifth question: Is such interference proportionate to the legitimate public end sought to be achieved, although it forms a part of that assessment? The test of truly exceptional is stringent and high: the circumstances have to be such as are not covered by the immigration rules or Home Office policies and the interests of the State are generally to be given significant and substantial weight. Each of the five questions should be addressed.

Where an appellant is, on facts found by the Immigration judge, eligible to remain in the UK under a policy, they will not have to show truly exceptional circumstances: the appeal may succeed under the fourth step, namely, that it is not necessary in a democratic society to remove an individual where the SSHD's own policy would be to permit him or her to remain: IA [2006] UKAIT 82. Alternatively, it may possibly be allowed under the third step: not in accordance with the law. This would be quite rare given that policies usually have words such as 'generally' or 'normally' in them, but the policy is a matter that should properly be taken into account in assessing whether an appeal should be allowed under Art 8, even if it is limited to the extent that the appeal is allowed and the case goes back to the SSHD for reconsideration on the basis of facts as found by the immigration judge.

Criminal offences

The offence under s2(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 was considered in Soe Thet v DPP [2006] EWHC 2701. Many individuals have been convicted and imprisoned on failing to produce a genuine immigration document, or to provide a reasonable excuse for not having such a document. This included individuals who travelled on a false document, which they then returned to the agent or handed to immigration. This appeal concludes that it is a defence if it can be proved that a false document was used for all purposes connected with the journey or that the journey was made without a document at all or that there was a reasonable cause for the destruction of the document.

Judicial review

Significant limits to the period of time that removal was deferred following the threat and/or issue of judicial review proceedings were introduced at very short notice. The Immigration Law Practitioners' Association has been liaising and negotiating with the IND over the reasons for this change in approach and the potential consequences. The situation changes and you are recommended to keep abreast of the ILPA mailings in order to keep up to date.