SCOLAG: Immigration and Asylum Update
Author: Alan Caskie | Posted: April 28, 2008
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Immigration and Asylum Update Jan to Mar 2008.pdf
A review of significant Immigration and Asylum cases by Alan Caskie, Advocate. This collection covers January to March 2008.
Case C-294/06 - PAYIR v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2008) ECJ (Third Chamber) 24/01/2008
The Home Office continue to attempt to narrow the scope of those who might benefit from the EU/Turkish Association Agreement. That agreement permits those lawfully working in the United Kingdom for one year to stay in the United Kingdom for a further 2 years to continue in the same job and thereafter to be granted Indefinite Leave to Remain. The Home Office are seeking to argue that Turkish students who work part time and au pairs, cannot benefit from this provision. HELD: On a reference for a preliminary ruling the ECJ held such people do benefit just as any other worker would. COMMENT: One wonders how long Turkey will remain on the list of approved nationalities for au pairs.
MK (Somalia) v SSHD [2007] EWCA Civ 1521
This case is of real significance. It is the first time the Court of Appeal has considered whether a sponsor (usually a spouse) in the United Kingdom who is in receipt of disability benefits can use those benefits to meet the maintenance requirements of the Immigration Rules. HELD: The judgement is difficult to read. The Court split 2 to 1 and the first and longest judgement is the minority. The other two judges hold that disability benefits once in the hands of the beneficiary are his or hers to do what they wish with, including supporting a spouse. The Asylum and Immigration Tribunal have another go at maintaining their position of stating that this is not permissible in NM (Disability discrimination) Iraq [2008] UKAIT 00026. The Asylum and Immigration Tribunal were clearly unhappy at the quality of the argument in that case but do make the point that if the disabled are permitted to bring family into the United Kingdom without enough money that will lead to ghettos. COMMENT: The difficulty with the approach of the Asylum and Immigration Tribunal in my view is that it fails to recognise the reality that disability benefits are not income replacement benefits. They may be used for any purpose and few recipients of DLA actually use the very limited funds to pay for care, rather they use it to improve the quality of their life. What could do that more than having your spouse with you. Middle Rate DLA is now £43.15 per week, the differential between a single persons Income Support and that of a couple is £34.45. A person with Middle Rate DLA who is not paying for care has enough money to support their
spouse.
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