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News & Views Monday 12th August to Sunday 18th August 2019

 

New Immigration Minister Appointed – What Changes Might We See?

Seema Kennedy, the British-Iranian solicitor, has made headlines as she was appointed the new Immigration Minister, replacing Caroline Nokes.

The House of Common’s Human Rights Committee has been in dispute with the Home Office regarding the length of time spent in detention by UK immigrants. The Home Office have been consistently urged by various parties to implement policies to minimise such periods of immigration detention. It appears that Kennedy supports the committee in such calls and that it is her intention to make an impact on overall immigration policy by decreasing the use of prolonged periods of immigration detention.

The reasons behind arguments to limit the period of detainees’ detention include observations that lengthy detention can have a detrimental effect on a detainee’s mental health, and would therefore infringe their human rights. The suggested limits to periods of detention could encourage the Home Office to speed up the process by which cases are considered and could help cut down on detention costs.

The Home Office’s decision to reject the call from MPs for a 28-day time limit in immigration detention cases has caused a stir amongst the committee, with Harriet Harman, the committee chairwoman, stating that: “Home Office immigration detention is arbitrary, unfair and breaches human rights. Repeated detention and release, which characterises the system, shows that it must be reformed”.

There is therefore no doubt that the committee will keep a close eye on whether Kennedy can help overturn the Home Office’s decision and propose a solution which would establish a set time limit for those in UK immigration detention.

Read more: Gherson Immigration, https://is.gd/Givayx



Immigration Centre Abuse Inquiry Must Be Held in Public

The court of appeal has rejected an application by the Home Office to conduct an inquiry into claims of systemic abuse at an immigration detention centre in private, rejecting the claims that public hearings would be prohibitively expensive.

In a further blow to the government, the argument that 21 G4S staff involved in the abuse allegations should not be compelled to give evidence was also rejected.

Lord Justice Bean told the court of appeal: “The special investigation should be permitted to proceed without further delay.” He said of the Home Office’s application: “I do not consider there is any realistic prospect of success.”

Read more: Diane Taylor, Guardian, https://is.gd/PfpwKk



Court Confirms - Illegal Workers Retain Employee Rights

 
Organisations can be held liable for breaching employment contracts even if their employees have been working in the country illegally, according to the Court of Appeal in London. The ruling by the court should prompt employers to review the policies and practices they have in place for complying with immigration rules, employment law expert Louise Shaw of Pinsent Masons, the law firm behind Out-Law, said. The case before the Court of Appeal concerned a dispute between two Malawian women.
According to the ruling, Judith Chikale was brought to the UK by business owner Ivy Okedina in 2013 to work for her as a live-in domestic worker. After being summarily dismissed from her job in June 2015 Chikale raised a series of claims against Okedina before the employment tribunal. Chikale's claims included unfair and wrongful dismissal, unlawful deductions from wages, unpaid holiday pay, breaches of working time law, failure to provide written particulars and itemised payslips, and race discrimination. Okedina argued, though, the contractual claims made by Chikale were unenforceable since Chikale had been working in the country illegally since her visa had expired on 28 November 2013.

Source: Out-Law News, https://is.gd/FTTmRP



Hassan Ali Zahid v Home Secretary

1. The Appellant, a national of Pakistan, date of birth 14 November 1971, had appealed against a Secretary of State's decision to refuse leave to remain on 8 December 2016. His appeal came before First-tier Tribunal Judge Samimi who allowed the appeal on 15 March 2018. The Secretary of State challenged that decision and on 23 January 2019 I published my decision in which I set aside the Original Tribunal's decision and directed for the matter to be re-made in the Upper Tribunal.

2. At the hearing before me I identified the two issues to be addressed. First, whether or not the Appellant had, as the Respondent had argued, used a proxy test taker to take his ETS TOEIC test. Secondly, whether or not considerations outside of the Rules gave rise to circumstances that indicated Article 8 ECHR was engaged and whether or not, in the circumstances, the Respondent's decision was proportionate, at least in terms of its impact upon the Appellant's wife. The Appellant's wife was a Jamaican national, date of birth 26 June 1991 from Jamaica and her name was [RS].

3. The Appellant's wife is entered into a marriage with the Appellant and essentially argued for her part that she has no wish to go and live in Pakistan and that expecting her to do so would simply be a breach of her human rights and would so adversely impact upon her that it would be utterly disproportionate.

4. At the hearing of the appeal it had been conceded that the Appellant had married his wife on 5 March 2015 and that they had undergone an Islamic marriage at a mosque. The Appellant's wife was not a Muslim, but Christian, and has no experience or knowledge of life in Pakistan as a woman or indeed as a spouse.

5. The Appellant's wife was granted indefinite leave to remain on 23 February 2011 and works as a care worker. She was effectively the sole source of income for her husband and herself. As a care worker she did not and still does not earn £18,600 which would be the required level of maintenance for her and her husband were he to apply to return to the UK from Pakistan and seek a spousal visa.

6. In terms of the taking of the TOEIC test a statement was produced by the Secretary of State and all the generic evidence produced in the ETS cases including the look-up tool, the evidence of Professor French and of the witnesses Collings and Millington, as well as the relevant case law of SM and Qadir [2016] UKUT 229, Shehzad [2016] EWCA Civ 615 and MA [2016] UKUT 450. Those matters have been further supplemented by the case of Qadir and Majumder [2016] EWCA Civ 1167.

7. The explanation that the Appellant had given in connection with the taking of the test in the face of the generic evidence, which asserted he had not, was that essentially he had taken the test. When the matter came to be considered by the Judge [D3-5] the evidence had not been substantively criticised. Thus, the Appellant had given evidence of him having previously taken an IELTS test, categorically rejecting the suggestion of using a proxy test taker and essentially urging that his English language abilities before he took the test were a fair indicator of his actual abilities. He iterated his arguments that he had taken the TOEIC test himself. Although his wife was not present when he undertook the TOEIC test she was essentially supporting his position. The Judge found that the Appellant and his wife had in the course of their evidence been truthful and consistent witnesses. Accordingly the Judge accepted that the Appellant had not used a proxy test taker.

8. More importantly, unchallenged by the Secretary of State, was that the Judge went on to address the evidence of the Appellant and his wife concerning their families, their relationships, living circumstances, and the genuineness and subsistence of their marriage. The Judge stated [D16]: "I find that given the Appellant's wife's ethnic background as a Jamaican, this is a matter that would attract discrimination against the couple's interfaith/interethnic marriage. ... I find the Appellant's wife who is a British citizen of Jamaican ethnicity would be subject to discriminatory treatment on account of the couple's interfaith marriage. I find that on balance it is likely that she will be subjected to harassment and find it difficult to find a job in an environment where mixed marriages are rare. I find that the social attitudes towards interfaith and mixed race marriage together with cultural and social isolation that the Appellant will inevitably suffer will create insurmountable obstacle (sic) and undue hardship to the Appellant's wife's ability to integrate to a family and private life in Pakistan".

9. The Judge continued [D17]: "In the alternative, I find that having regard to Article 8 of the ECHR, given the fact that the Appellant's family and private life has been established in the United Kingdom over the course of the entirety of her life are factors that I attach considerable weight to, and which I find does render the Appellant's removal disproportionate to the public interest of immigration control. The evidence given by the Appellant and his wife makes it clear that if the Appellant did apply for entry clearance from abroad they would, with the assistance of their friend who has offered third party support ... be able to meet the financial requirements of the Rules". The Judge allowed the appeal as well under Article 8 ECHR, albeit the appeal was only being made, and could only be made, under the ECHR and not on the basis of the Immigration Rules.

10. I concluded that the Judge was entitled to come to the view that he did in relation to the taking of the TOEIC test and the use of a proxy test taker. The explanation the Appellant gave of that matter did not get close to showing that there was an innocent explanation or that the evidential burden of proof had shifted back to the Respondent. I concluded that the evidence when looked again simply showed that the explanation tendered really did not get close to being fairly described as an innocent explanation.

11. However, I agreed with the Judge that the position faced by women in Pakistan was of itself recognised as problematic, and returning as a partner in a mixed marriage relationship as well as being a mixed religious partnership, of a lady to Punjab, who has no knowledge of Punjabi, no evident options to find employment in her area of work which is remunerated, nor is there anything to indicate the likelihood of acceptance within the community of women in Pakistan that gives rise to the real concern that the Appellant would not find integration with his wife a practical reality and that she would face isolation and a lack of opportunity as well as the obvious constraints on dress, custom and expected conduct of women in Pakistan.

12. In reaching the findings I was assisted by the Country Information and Guidance on interfaith marriage 2016, family gender violence 2016, Pakistan Christian and Christian converts 2018, two articles in 2016 and 2018 on interfaith relationships and Women in Pakistan.

13. Accordingly, I concluded in the light of the material before me that the evidence showed that the appeal should be allowed on Article 8 ECHR grounds and it was disproportionate in terms of the interference in family life. The Respondent's expectation that the Appellant's wife could have a reasonable life in Pakistan was not made out on the evidence before me or the Judge.

Notice of Decision: The appeal is allowed on Article 8 ECHR grounds.





Patients Not Passports

The NHS was designed to be a universal health service, free for all that need it. This is no longer the case.

As part of its Hostile Environment immigration policies, the Government has been restricting access to care for some people. This drastic shift away from the founding principles of the NHS is having a devastating impact on patients who are unable to pay. The policy is changing the culture in our health service, making charging for treatment acceptable and opening the door to a system where access to care is dependent on ability to pay.
The policy is unworkable.

The Windrush Scandal is the most prominent example of people denied life-saving cancer treatment or deterred from seeking care until they are critically ill. The policy embeds discrimination and racial profiling in the NHS, as people have their entitlement to care challenged on the basis of their appearance, their name, or their accent. There is no evidence the policy saves any money, instead it can lead to dangerous delays in treatment and more pressure on emergency care, at increased cost to the NHS and with much worse outcomes for patients and for the health of the public more generally. You can take action today to help end charging in the NHS. Join us in writing to the Department of Health and Social Care to tell them that we won’t stand by while they force the NHS to deny care to people who can’t pay.

On this page https://act.patientsnotpassports.co.uk/

You can write to the DHSC and join the Patients Not Passports campaign to end NHS charging.



What is the ‘No Recourse to Public Funds’ Condition?

The “no recourse to public funds” condition is imposed on grants of limited leave to enter or remain with the effect of prohibiting the person holding that leave from accessing certain defined public funds. A person who claims public funds despite such a condition is committing a criminal offence and there may well be future immigration consequences as well, as any existing leave can be curtailed or a future application refused.

Additionally, section 115 of the Immigration and Asylum Act 1999 prevents migrants from accessing a range of welfare benefits unless they fall into one of the very limited exceptions.

What is the legal basis for the “no recourse to public funds”...

Read more: Colin Yeo, Freemovement, https://is.gd/EkFxZr



Shackles and Restraints Used on Hundreds of Deportees from UK

Hundreds of people deported from the UK were restrained by a variety of methods including shackles, the Guardian has learned. There were 447 cases where one or more forms of restraint were used between April 2018 and March 2019. Information on restraint using rigid bar handcuffs, leg restraints and waist restraint belts was provided to the Guardian in a freedom of information response.

Home Office policy states that there is a presumption against the use of restraint, but in 335 cases, the majority, more than one form of restraint was used at the same time. In 102 cases three different pieces of restraint equipment were used. Home Office subcontractors that provide escorting services are trained in restraint procedures.

MPs and human rights campaigners condemned the evidence of widespread use of restraint during deportations. Labour’s David Lammy said the new data was chilling and revealed an abuse of power.

Read morel Diane Taylor, Guardian, https://is.gd/I1YPUj




Serco Blocked by Court from Evicting 50 Asylum Seekers

Scottish Refugee Council (SRC) said the court’s decision “raised serious questions” about the firm’s plans to turf out 300 people.

Serco had sent some tenants letters warning that it would change their locks, rather than using bailiffs to forcibly throw them out. It hoped to get around the need to have a court order—a requirement for an eviction under Scottish law.

Graham O’Neill, an SRC policy manager, said, “These 50 interdicts are a significant milestone in the campaign against Serco and the Home Office’s inhumane treatment of people seeking refugee protection in Scotland. “We urge Serco to immediately stop making people homeless and to stop spreading fear and anxiety among vulnerable, marginalised groups in Scotland.

Serco, which runs asylum seeker housing on behalf of the Home Office, wants to push through the mass eviction before its contract ends. The new landlord, the Mears Group, has said it wants to take over empty housing stock in September. The court decision comes amid mounting pressure on Serco bosses.

Read more: Tomáš Tengely-Evans, Socialist Worker, https://is.gd/jVR6v5



How Bad Will Priti Patel be at The Home Office?

Amid all the fanfare surrounding Boris Johnson’s first few days in office, news that Priti Patel was being promoted from the backbenches to the role of home secretary caused perhaps the greatest stir in Whitehall. A committed Thatcherite and free marketeer, not only is Ms Patel notoriously hardline on criminal justice issues — having famously declared her support for the death penalty, before eventually backtracking — but she was forced to resign from the cabinet less than two years ago over a scandal involving unauthorised talks with the Israeli government.

Yet the ardent Brexiter and Johnson loyalist — since dubbed the “Lazarus of politics” — has returned in earnest to become the most senior woman in the cabinet, heading one of the four great offices of state. Given the prime minister’s commitment to deliver Brexit by October 31, Ms Patel will have the crucial job of reshaping the immigration system when free movement ends and bringing back the “control” over incoming migrants that Leave voters were promised.

Home Office officials are already braced for a more interventionist home secretary than either Sajid Javid or Amber Rudd has been. Ms Patel’s voting record shows strong support for a stricter asylum system, tough enforcement of immigration rules and restricting legal aid, while being opposed to same-sex marriage and retaining EU human rights principles after Brexit.

In an interview with the Daily Mail this weekend, she said she hoped to make potential offenders “literally feel terror” when contemplating criminality. Mr Johnson’s administration is expected to focus relentlessly on cutting crime and reducing immigration in response to polls showing this is what matters most to voters. She was one of the authors of Britannia Unchained, a radical Tory pamphlet published in 2012 that prescribed shock therapy to correct what it saw as a nation beset by a workforce of “idlers”, a bloated welfare state and timid approach to entrepreneurship. Ms Patel’s appointment to the Home Office has prompted an outcry from human rights groups concerned about her regressive stance on social issues and support for the department’s controversial hostile environment policies on immigration.

Read more: Financial Times, https://is.gd/kkjSGK


Home Office v Daneil [J]

1. This is a 're-making' decision. In an 'error of law' decision sent on 13 November 2018, I gave reasons why the First-tier Tribunal ('FTT') made errors of law in allowing Mr [J]'s appeal, such that the decision must be remade.

2. Mr [J] is a citizen of Germany, and therefore an EEA citizen. He was born in Germany in 1997, and is 22 years old. He entered the United Kingdom ('UK') with his parents in 1998, when he was a baby. He has remained in the UK since this time.

3. Mr [J] was convicted of offences involving Class A drugs and sentenced to 40 months imprisonment on 26 June 2016. In his decision dated 11 January 2018 to make a deportation order, the SSHD did not accept that Mr [J] had acquired a permanent right of residence and did not consider that he had lawfully resided in the UK for a continuous period of 10 years. The SSHD's position at the time of his decision was therefore that Mr [J]'s deportation only needed to be justified on grounds of public policy or public security, and he did not need to make out serious or imperative grounds. The SSHD's position has now changed and will be explained in more detail below.

4. Mr [J] appealed against the SSHD's decision to deport him, to the FTT. The FTT accepted that Mr [J] was entitled to enhanced protection on imperative grounds, and as such the SSHD needed to demonstrate imperative grounds for his removal. The FTT found that the SSHD was unable to do so and allowed the appeal.

5. The SSHD appealed against FTT's decision, in which it allowed the appeal under the Immigration (EEA) Regulations 2016 ('the 2016 Regulations). I allowed that appeal for reasons set out in my 'error of law' decision.

Conclusion
27. It has been accepted that Mr [J] has both a permanent right of residence and was, at the date of the SSHD's decision to deport him, able to establish the ten years' continuous residence such that his deportation could only be justified on 'imperative grounds of public security' under regulation 27(4)(a) of the 2016 Regulations. For the reasons I have set out above this threshold has not been met in this case.

28. It follows that it is not necessary for me to make further findings on the proportionality of Mr [J]'s deportation under the 2016 Regulations. Suffice it to say that the factors weighing in Mr [J]'s favour, would, in my judgment, carry considerable force and his appeal succeeds on this alternative basis.

Decision

29. I re-make the decision by allowing Mr [J]'s appeal under the Immigration (EEA) Regulations 2016.



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