Featured Cases

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.   

In a judgment handed down on 8 April 2008 Sir George Newman granted the HSMP Forum’s application for a declaration that the Secretary of State had unlawfully applied the changed provisions of the Highly Skilled Migrant Scheme to people who had entered the United Kingdom under the previous requirements of the scheme.  The judge found that due to the terms of the guidance provided to the applicants when they entered the UK under the HSMP they had legitimately expected that their applications to extend their stay in the UK would be considered under the same criteria which had applied when they had been granted leave to enter.  His crucial conclusion was:

In a determination demonstrating the Immigration Judge’s inspired interpretation of international refugee law a client of Gherson has succeeded in his appeal against the Secretary of State’s refusal to vary his leave to remain to that of a refugee.   

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.  

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:

Immigration Judges (they used to be called Adjudicators) consider the appeals of people whose applications, whether for asylum or for visas to come to the United Kingdom, have been refused by the Secretary of State.  In the course of making their determinations either in favour of or against Appellants they make findings of fact.  In AA (Somalia) & AH (Iran) v Secretary of State  [2007] EWCA Civ 1040 (25-10-2007) the Court of Appeal had to deal with the difficulties which are created by different Immigration Judges making different findings of fact concerning the same events.  The issue is starkly illustrated by Lord Justice Ward’s example:

Employers will be moved to the front line of immigration law enforcement in an effort to stem the tide of illegal immigration to the UK. The Home Office will require that employers check the legal status of their current and potential staff or face stiff penalties involving on the spot fines of up to £10,000 plus unlimited fines and gaol terms for knowingly employing workers illegally.

At about this time in 2006 Gherson reported the Home Office’s changes to the qualifying criteria (and to the relevant immigration rules) for leave to enter under the Highly Skilled Migrant Programme (HSMP).  The changes increased the quota of points applicants needed to score in order to obtain leave to enter.   Points which had been awarded under the previous tariff for work experience obtained in an applicant’s country of origin were no longer available.  

The Border and Immigration Agency (the “BIA”) has published its “statement of intent” regarding Tier 1 of its Points Based System.  Tier 1 is due to be implemented in the first quarter of 2008.  

The Appellate Committee of the House of Lords has allowed the Secretary of State’s appeal against the Court of Appeal’s judgment in Secretary of State for the Home Department v AH (Sudan) and others (FC)  [2007] UKHL 49.