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Tribunal catch up


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There have been a few quite interesting tribunal determinations recently, which I have overlooked for various reasons. I thought it was high time for a catch up, otherwise I’ll never force myself to sit down and digest them.

MJB (Inability to provide protection, JAM) Trinidad & Tobago CG [2010] UKUT 448 (IAC) is a case that does pretty much exactly as it says on the tin, so to speak. A panel chaired by Mr Justice Owen finds that the system of witness protection in Trinidad and Tobago is more or less non existent at the moment, meaning that sufficient protection is not available for certain individuals.

In DN (student – course ‘completed’ – established presence) Kenya [2010] UKUT 443 (IAC) Senior Immigration Judge McKee finds that the definition of ‘established presence’ in the UK (which in turn determines the level of funds the applicant must show) does not include an implied requirement that it be successful presence from an academic perspective, only that the person was completed a course of study of longer than six months within the last four months. Sadly the finding was itself academic for the appellant, who failed on other grounds.

NA (Excluded decision; identifying judge) Afghanistan [2010] UKUT 444 (IAC) is an interesting decision, in which a senior panel hold that a decision to refuse to extend time for appealing (or any other judicial decision for that matter) is invalid where it does not bear the name of the deciding judge. However, there is no right of appeal as such against a refusal to extend time. Not for the first time, the learned tribunal is silent on the means of procuring a remedy, which must be either or all of simple correspondence with the tribunal, an attempt to appeal that somehow leads to the tribunal withdrawing the decision, and/or proceedings for judicial review.

It should be noted that the appellant in this case was quite fortunate. He seems to have been badly let down by his sort-of representatives, Asylum Justice, of whom I have never previously heard.

El Presidente Blake himself sat on the panel for MAH (dual nationality – permanent residence) Canada [2010] UKUT 445 (IAC). This is also an interesting case, as it restates what was thought to be a basic proposition in EC law, which is that dual nationals can effectively chose which nationality to rely on for free movement law purposes. The case of McCarthy is considered but the tribunal holds that it does not alter the previous understanding.

The tribunal also, very importantly, holds that residence under the predecessors to the current 2006 EEA regulations does count towards permanent residence. I believe this reverses the tribunal’s previously stated position in reported cases. The Advocate General opinion in Lassal is mentioned, which was reported here on Free Movement in May last year.

More catching up to follow soon.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


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