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  News & Views Monday 13th November to Sunday 19th November 2017  
EU Citizens Who Become British Can Bring Non-EU Spouses to UK

A European citizen who becomes a British citizen does not lose the right to have a spouse from a non-EU country live with them in the UK, the European court of justice (ECJ) has ruled in a landmark case. After a five-month deliberation it has decided the Home Office was wrong to refuse a dual British-Spanish citizen the right to have her Algerian husband live with her in Britain. Immigration barristers say the ruling will have widespread implications for EU citizens applying for British passports and those married or considering marriage to a third-country national.

“This is great news for EU citizens who have moved to another European country because it enables them to benefit from sensible EU rules on being joined by family members,” said the immigration barrister Colin Yeo, an expert on freedom of movement. “The court has held that the UK has been wrong to refuse to recognise free movement rights for all those EU citizens who have been naturalising as British following the Brexit referendum. After Brexit, though, all those rights will be lost unless an agreement is reached to retain them.” The case of García Ormazábal and her husband, Toufik Lounes, was referred to the European court by the high court in London last year after the Home Office rejected an application by the Algerian for permanent residency in the UK.

Read more: Lisa O'Carroll, Guardian, http://bit.ly/2iW8Ez3



Humanitarianism: The Unacceptable Face of Solidarity

For humanitarians, the belief that all humankind should be treated humanely and equally is not some abstraction − assisting those in great need and responding to emergencies are what you simply get on with. That humanity is under an obligation to intervene in the face of suffering, is a principle embodied in religious teaching, as well as humanist and secular thought.

The EU's and states’ emphasis on securing borders against migrants and refugees has led to:
* the extension of the 'hostile environment' and territorial policing to border bottlenecks
* the undermining of human rights obligations of rescue and subsistence;
* the increasing criminalisation of humanitarian actors who try to fill the gaps in rescue and provision; 
* the encouragement of the far Right's anti-migrant agenda. 

The report calls for the European Commission to reform the Facilitators Package to create a mandatory exemption from prosecution for humanitarian actors. 

Source: Institute of Race Relations, Humanitarianism: the unacceptable face of solidarity, demonstrates how anti-smuggling laws designed for use against criminal gangs have been used improperly against those acting from humanitarian motives in EEA member states to criminalise decency and compassion. 


Through Her Eyes: Enabling Women’s Best Evidence in UK Asylum Appeals

New research by Asylum Aid and NatCen has shown us that a fair system for women fleeing sexual violence is within reach. Nearly two thirds of initial asylum applications are refused each year by the Home Office.  Most people then take their case to appeal. This research explores how women seeking asylum navigate the appeals process, the extent to which current guidance is followed and what support is available to women as their case is heard at the First Tier Tribunal. The researchers undertook in-depth qualitative interviews with women who have been through the appeals process as well as legal analysis of their case files. In addition, the research involved interviews with judges, legal representatives and support organisations.

The research questions focus on:

  • which factors result in women’s asylum claims being successful on appeal at the First-tier Tribunal
  • how the current guidance for judges is being implemented  

A picture emerged of some women who were inadequately briefed by their legal representative, being questioned by a Home Office Presenting Officer whose approach suggested they were lying and facing a judge who lacked awareness of gender-based violence.

Read more: Asylum Aid, http://bit.ly/2yyIVU1

Download the report, http://bit.ly/2AEqf6y


US: Congress Should Not Fund Abusive Immigration Policies

A year after a US election marred by divisive rhetoric, thousands of families have been torn apart and millions are living in fear because of cruel and ineffective deportation policies, Human Rights Watch said today. Americans who want to push back should ask their representatives to oppose the Trump administration’s funding request for these harmful policies by participating in a campaign called “Immigrants Are US.”

“Congress should develop a real plan to reform our broken immigration system that protects immigrants with deep ties to the US and affords everyone due process,” said Alison Parker, US Program director at Human Rights Watch. “Lawmakers need to hear from voters who think it should reject President Trump’s immigration agenda, and deny increased funding to a broken system that already does so much harm.”

An animated film by Molly Crabapple and narrated in English by comedian Samantha Bee and in Spanish by actor Demián Bichir was released today by Human Rights Watch as a part of the campaign, which also marks the first anniversary of President Donald Trump’s election. The film highlights how rhetoric conflating illegal immigration with crime is dangerous and divisive, fueling policies that destroy families and harm communities. Human Rights Watch is urging people in the United States to mark November 8, 2017, by wearing a T-shirt with the slogan “Immigrants Are US.”

Read more: Human Rights Watch, http://bit.ly/2iJdCPr


Inspection of Yarl’s Wood IRC – Concerns Over Vulnerability of Detainees

Main recommendations: 1) There should be a strict time limit on the length of detention and 2) Rule 35 assessments should be completed within 24 hours.

21 recommendations from the last inspection had not been achieved and 23 only partly achieved.

Conditions for detainees, mostly women, in Yarl’s Wood immigration removal centre had improved significantly in the two years since a previous highly critical report by HM Inspectorate of Prisons, inspectors found in 2017.

However, commenting on the June 2017 inspection, Peter Clarke, HM Chief Inspector of Prisons, said the current management in the centre operated by Serco near Bedford were to some extent dealing with failings outside their control.

Some detainees were held for too long and, during the first six months of 2017, 67% of women had been released into the community - which, the report noted, “raised questions about the justification for detention in the first place.” Weaknesses in the handling of immigration casework by the Home Office, as well as some problems with health care at the centre, were having a “significant negative impact” on detainees.

 The 2015 inspection was preceded by publicised allegations of abuse by staff and that inspection found large numbers of detainees showing evident signs of distress. The most noticeable change in 2017 was that the atmosphere across the centre was far calmer, more respectful and relaxed.

The handling of cases by the Home Office, however, was a principal area of concern:

• Nearly half of the detainees felt unsafe and this was found to be “largely an expression of concern as a result of uncertainty about the future and the prospect of removal from the UK.” Fewer detainees than in 2015 were being held for very long periods. At the time of the inspection, none had been held for over a year, although 14 had been held for between six months and a year.

• The quality of Rule 35 reports (assessments of vulnerable detainees) had improved, but not by enough, and inspectors were concerned by the continued detention of women who had been tortured. Almost a fifth of those in detention were assessed by the Home Office to be at the higher levels of risk in terms of vulnerability.

• Inspectors were also concerned to find two Rule 35 responses where the Home Office had refused, without explanation, to accept that rape came within the legal definition of torture. A study of a sample of Rule 35 cases “indicated that women were being detained despite professional evidence of torture, rape and trafficking, and in greater numbers than we have seen at previous inspections.”

During the inspection, it was discovered that a doctor who had been employed at the centre since November 2016 did not have the required registration. “This was a serious matter and required a thorough investigation,” Mr Clarke said. Also, although health care provision overall had improved since 2015, inspectors were concerned to find that patients were put at risk through a lack of professional oversight of the centre’s pharmacy and some prescribing practices. NHS England and G4S were responsible for health care at Yarl’s Wood.
Among positive findings, inspectors noted there was little violence. The small number of allegations of inappropriate sexual behaviour by staff had been thoroughly investigated. One had been substantiated since the 2015 inspection, leading to the officer in question being dismissed, with a police investigation ongoing.
The range of activities for detainees was good. Security measures were by and large proportionate, the centre was clean and there was not the sense of restriction and confinement often found in such establishments. Women were able to move freely around the centre.

In terms of preparation for removal from the UK or release, access to phones was good, arrangements for visits generally good, and the Hibiscus resettlement project offered valuable support, particularly in some complex cases. However, Mr Clarke said, “the fact remains that around 70% of the women detained at Yarl’s Wood are released back into the community. The provision of welfare support for these women was far from systematic and needed to be improved.”

Overall, Mr Clarke said, “The leadership and staff could and should take much of the credit for the improvements, but it was clearly a frustration for them that the centre was not able to gain higher assessments in some areas of this inspection because of failings that were outside their control. For instance, weaknesses in immigration casework and health care provision, which had a significant negative impact on the experiences of detainees, were the responsibility of the Home Office and the commissioned health care provider respectively. If I had invested the energy and commitment to making improvements at Yarl’s Wood that the current management team clearly have, I too would be frustrated.”

Inspectors made 44 recommendations.

Read the press release: http://bit.ly/2zFLUNS

Download the full report: http://bit.ly/2yGesDi


 

Outside the Rules: How Immigration Detainees in Prison Are Let Down

Unlike those held in Immigration Removal Centres (IRC’s), immigration detainees in prison are not permitted a mobile phone or internet access and face significant obstacles accessing lawyers, charities, and Home Office caseworkers. And if that isn’t bad enough, immigration detainees in prison are also denied the basic safeguards afforded to those in IRC’s. The safeguards, found in the Detention Centre Rules are crucial in preventing vulnerable people from being held in detention.

Rule 35 is especially important. Under this rule, doctors are required to assess whether a detainee is particularly vulnerable in detention, and to send a report of the assessment to the Home Office. The doctors look especially at special illnesses and conditions, including mental health issues as well as a history of torture, sexual abuse or trafficking. These reports can either result in the Home Office taking the initiative to release the individual, or can help lawyers obtain both release and compensation on the basis that they were unlawfully detained.

Read more: Duncan Lewis, http://bit.ly/2z44joe



Still No End to America's War in Afghanistan


Afghanistan in 2016 saw 11,489 of its civilians killed in armed conflict, according to international observers. This was the highest number since external recording started in 2009. This year is expected to be at least as bad. The fighting season from May-October was particularly intense, with substantial losses among Afghan security personnel. In short, there is no end in sight to the United States-led war in Afghanistan, even as its seventeenth year arrives. In fact, the Taliban and other armed opposition groups (AOGs) appear to be gaining ground. The Taliban has taken back control of most of Helmand province, whose great value includes being the centre of opium-poppy cultivation. At most around 65% of the country is estimated to be nominally in government hands.

Read more: Paul Rogers, Open Democracy, http://bit.ly/2zDAVEn



I’m a Foreign National do I Pay for NHS Healthcare?


Immigration lawyers would agree that this is a question posed quite often by most non-EEA national clients.   The common misconception is that lack of access to public funds means that the person cannot access NHS healthcare either. This is not so.

The Department for Health has its own rules for deciding who gets free NHS treatment. The test is about whether the person is ordinarily resident in the UK. The term ‘ordinary residence’ has been described by the government as “living lawfully in the UK for settled purposes, as part of a person’s regular order of life. A person's identifiable purpose and whether that purpose has a sufficient degree of continuity to be properly described as settled are the determining factors.”

There are a number of factors that are taken into account when determining ordinary residence. A person’s legal entitlement to stay here is one factor, but not conclusive unless it is permanent residence. The Department for Health has a very useful, but lengthy, tool guide on the subject, designed to assist medical professionals on the topic. 

Read more: McGill&Co, http://bit.ly/2hoKCA9



Home Curfew Unlawful - £4,000 Damages

Queen (on the Application of Ibrahima Jollah) Claimant - and - SSHD (No. 2)

This is the determination of a claim for damages for false imprisonment arising out of the imposition of what has been referred to as a curfew, namely a requirement that the claimant be present for a certain number of hours each day at specified premises (the place where he was required to reside), between 3 February 2014 and 14 July 2016. The requirement had been imposed by the defendant following the claimant's release from an immigration detention centre. The requirement was imposed pursuant to paragraph 2(5) of Schedule 3 to the Immigration Act 1971 ("the Act"). The Court of Appeal in R (Gedi) v Secretary of State for the Home Department [2016] 4 WLR 93 held that that statutory power did not authorise the imposition of such a requirement and that such a condition could only be attached as a condition of the grant of bail. The defendant accepts that the imposition of the requirement, or curfew, in the present case was unlawful.
Conclusion
In the circumstances, the curfew did amount to a detention for the purposes of the tort of false imprisonment. The defendant no longer seeks to argue that the claimant would have been subjected to a curfew and so would not have suffered any injury even if the defendant had not acted unlawfully. In those circumstances, the law requires the payment of compensation for the injury suffered as the result of the imposition of the unlawful curfew. That amounts, in the present case, to £4,000. This is not a case where aggravated damages should be awarded.

Published on Bailii, 09/112017
http://www.bailii.org/ew/cases/EWHC/Admin/2017/2821.html



Asylum Research Consultancy (ARC) COI Update Vol. 158

This document provides an update of UK Country Guidance case law, UK Home Office publications and
developments in refugee producing countries (focusing on those which generate the most asylum seekers in
the UK) between 31 October and 13 November 2017.

Download the full report, http://bit.ly/2zJM4ld , Published 14/11/2017



Newspaper Tallies 33,293 Dead Migrants

A German newspaper has published a list of 33,293 people it says died while trying to immigrate to Europe between 1993 and May of this year. The list, published by daily Der Tagesspiegel Thursday, covered 46 pages and included names, ages and countries of origin, when available, as well as how the victims died and their date of death. Often, though, they never were identified. The newspaper said it wanted to document, “the asylum-seekers, refugees and migrants who died since 1993 as a consequence of the restrictive policies of Europe on the continent’s outer borders or inside Europe.” Some of the immigrants who succeeded in reaching Europe later died in violent attacks or killed themselves in custody while waiting to be deported back to their home countries. “We want to honor them” Der Tagesspiegel wrote. “And at the same time we want to show that every line tells a story...and that the list keeps getting longer, day by day.”

Last year was the deadliest for migrants attempting to cross the Mediterranean, with at least 5,079 dying or going missing during their journey, according to the UN International Organisation for Migration (IOM).

Read more: Harriet Agerholm, Independent, https://ind.pn/2zTnnpg



£78,500 Damages for Unlawfully Detained Foreign National Offender

Mohammed v The Home Office [2017] EWHC 2809 (QB) (08 November 2017)

1. Abdulrahman Mohammed is a 39-year-old Somali citizen. He came to the UK on 2 February 1996 at the age of 17. He has spent much of the last two decades in and out of custody, largely for serious criminal offences but he has also been detained by the Home Office pursuant to its powers to order the detention of foreign criminals who are liable to deportation.

2. By this action, Mr Mohammed complains that three periods of immigration detention, totalling some 445 days, were unlawful:
2.1 41 days from 12 September to 22 October 2012;
2.2 139 days from 6 January to 24 May 2013; and
2.3 265 days from 14 June 2015 to 4 March 2016.

3. Accordingly, Mr Mohammed claims damages for false imprisonment. Following the earlier judgment of Hayden J. upon Mr Mohammed's claim for interim relief ([2016] EWHC 447 (Admin)), the Home Office conceded that he had been falsely imprisoned for 149 days between 8 October 2015 and 4 March 2016. This case was listed before me to determine the remaining issues of liability. However, the Home Office conceded liability in respect of all three periods of detention late on the afternoon before trial. Furthermore, the Home Office abandoned its argument that the Court should only award nominal damages. It therefore falls to me to assess damages.

4. Mr Mohammed gave brief evidence in support of his case. In addition, he relied on the written evidence of Dr Lisa Wootton, a consultant in forensic psychiatry. The Home Office did not call any evidence.

Postscript

66. Some reading this judgment might well question why a foreign citizen who has so thoroughly abused the hospitality of this country by the commission of serious criminal offences is entitled to any compensation. There are, perhaps, three answers to such sceptic:

66.1 First, there are few principles more important in a civilised society than that no one should be deprived of their liberty without lawful authority.

66.2 Secondly, it is essential that where a person is unlawfully imprisoned by the state that an independent judiciary should hold the executive to account.

66.3 Thirdly, justice should be done to all people. In R (Kambadzi) v. Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299, Baroness Hale said, at [61]: "Mr Shepherd Kambadzi may not be a very nice person. He is certainly not a very good person. He has overstayed his welcome in this country for many years. He has abused our hospitality by committing assaults and sexual assault. It is not surprising that the Home Secretary wishes to deport him. But in Roberts v. Parole Board [2005] UKHL 45, [2006] 1 All ER 39, at [84] … Lord Steyn quoted the well-known remark of Justice Frankfurter in United States v. Rabinowitz (1950) 339 US 56, at 69, that 'It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.' Lord Steyn continued: 'Even the most wicked of men are entitled to justice at the hands of the State.' And I doubt whether Mr Kambadzi is the most wicked of men."

67. Mr Mohammed is a prolific and violent offender. I can well understand why the Home Secretary might wish to deport him. She has not, however, been able to do so, largely because of the very real risk that deportation to Somalia would pose. Like Mr Kambadzi, he is not the most wicked of men, but his presence in the UK is not conducive to the public good. Nevertheless, in a civilised society, he is entitled to justice. Specifically, he is entitled not to be falsely imprisoned and, given the Home Office's admission that he has been unlawfully detained, he is now entitled to the compensation that I have awarded.

Published on Bailii, 09/11/2017
http://www.bailii.org/ew/cases/EWHC/QB/2017/2809.html