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  News & Views Monday 12th February to Sunday 18th February 2018  


Massive Data Gaps Leave Refugee, Migrant and Displaced Children In Danger

Gaps in data covering refugees, asylum seekers, migrants and internally displaced populations are endangering the lives and wellbeing of millions of children on the move, warned five UN and partner agencies today. In 'A call to action: Protecting children on the move starts with better data', UNICEF, UNHCR, IOM, Eurostat and OECD together show how crucial data are to understanding the patterns of global migration and developing policies to support vulnerable groups like children. The Call to Action confirms alarming holes in the availability, reliability, timeliness and accessibility of data and evidence that are essential for understanding how migration and forcible displacement affect children and their families. For example:

"Information gaps fundamentally undermine our ability to help children," said Laurence Chandy, UNICEF Director for the Division of Data, Research and Policy. "Migrant children, particularly those who migrate alone, are often easy targets for those who would do them harm. We can't keep children safe and provide them with lifesaving services, both in transit and at their destination, if we don't know who they are, where they are or what they need. We urge Member States to fill these gaps with reliable disaggregated data and to improve cooperation so that data is shared and comparable."

Read more: Relief Web, https://is.gd/nwz8Ql



New ‘Stop and Scan’ Powers to Fingerprint Criminals and ‘Illegal Immigrants’

Police in the UK are trialling a new “stop and scan” power, which lets them check the fingerprints of unknown individuals against national criminal and immigration databases.  Officers will be able to stop anyone when an offense is suspected and scan their fingerprints using a mobile device if the individual cannot otherwise identify themselves. The scanners will check fingerprints against 12 million biometric records held in two databases: IDENT1, which contains the fingerprints of people taken into custody, and IABS, which contains the fingerprints of foreign citizens, recorded when they enter the UK.

Speaking to Wired UK, project manager Clive Poulton, who is helping oversee the trials for the Home Office, said: “[Police] can now identify the person in front of them whether they are known to them or not known to them, and then they can deal with them.” The Home Office and police forces involved say stop and scan is simply a way to speed up checks that officers would otherwise have to make at police stations. But privacy and human rights advocates warn that the mobility of the technology and the lack of oversight in its deployment means it could foster abusive policing tactics.

Read more: https://is.gd/IBD7x2



New UK Data Protection Rules and Their Effect on Immigrants

The General Data Protection Regulation (GDPR) comes into effect on 25 May 2018, in what has been described as one of the biggest modernisations of data protection law anywhere in the world. The GDPR seeks to create a consistent set of data protection rules across the entire European Union, including the UK, where the regulation will be implemented through a new Data Protection Bill in order to preserve the GDPR post-Brexit.
Schedule 2, paragraph 4 of the Bill sets out exemptions from the GDPR with regards to immigration law. The inclusion of the immigration law exemption means that non-nationals subject to an immigration procedure will lose the right to access data held about them. In turn, this will inevitably lose them to opportunity to rectify or delete errors in Home Office records or uncover data that has been unlawfully collected. This new law will affect individuals who are not UK nationals, including EEA and EU nationals who are resident in the UK.

In practical terms, this will make it very difficult, or even virtually impossible, for individuals involved in immigration disputes to obtain copies of their personal data from the Home Office.

It has been argued that the new clause creates a lack of adequate protection of the data protection rights of non-nationals in the UK. This in turn may be damaging to UK interests because if the UK loses its adequacy arrangement with the EU, after Brexit, it would also lose free access to data from nations such as the US. Furthermore, some argue that the clause will create new discriminatory immigration restrictions by way of removing a transparent implementation of data protection rules in the UK.

On the other hand, the MPs who advocate a ‘hard Brexit’ argue that the key reason for leaving the EU was the desire to reduce immigration to the UK and therefore welcome the new rules.

Posted by: Gherson Immigration,  http://bit.ly/2sgN2FF




Registration as a British Citizen For People Born Abroad to British Mothers Between 1949 and 1983

A judgement handed down by the Supreme Court has opened the door to applications for registration as a British citizen from people born abroad to a British mothers between 1949 and 1983. The case is Advocate General for Scotland v Romein [2018] UKSC 6. McGill & Co Solicitors acted on behalf of the Respondent, Ms Romein, along with Advocates Lesley Irvine and Kenny McBrearty QC. The case concerned the correct interpretation of the British Nationality Act 1981, in particular the provisions inserted into the Act in 2003 to correct the historic gender discrimination inherent in British nationality law.

Ms Romein’s mother is British by decent through her father (Ms Romein’s grandfather) who was born in the UK. Ms Romein was unable to obtain British citizenship following her birth because, at that time, it was not possible for women to pass citizenship on to their children. Had it been her father who was the British citizen, Ms Romein would have been able to acquire British citizenship through registration of her birth at the British consulate within one year of her birth. In 2003 additional provisions were added to the 1981 Act which allowed those deprived of citizenship by this gender discrimination to apply to the Home Office for registration as a British citizen.

Read more: McGill & Co, http://bit.ly/2nRl6mT



SSHD ‘Trafficking’:  Relevant Policy Guidance Unlawful

PK (Ghana), R (On the Application Of) v SSHD [2018] EWCA Civ 98 (08 February 2018)

Introduction

56. Anyone, including a decision-maker, reading paragraphs 2.1 and 2.4 could (and, in my view, probably would) proceed on the basis that the same high threshold applies in trafficking cases. That impression is fortified by the general impression given by the policy guidance that trafficking cases are to be treated in the same as any other application for discretionary leave to remain. For example, the CAG indicates that, if discretionary leave had already been considered with an asylum claim, then it is unnecessary to consider it in the context of Article 14(1)(a) of the Trafficking Convention (see paragraph 18 above). However, as I have described, the Convention is intended to give victims of trafficking particular protection and assistance; and Article 14(1)(a) merely requires consideration of whether it is necessary for the victim to remain in a country because of his or her personal circumstances, without the higher threshold implicit in the word "compelling".

57. Consequently, even if a decision-maker were to grasp that Article 14(1)(a) of the Convention requires consideration of whether it was necessary for a person to remain in the United Kingdom has to be assessed by reference to the objectives of the Trafficking Convention, there is a real – indeed, in my view, a very substantial – risk that, on the basis of the policy guidance, he would apply a threshold different from and higher than that required by the Convention.

58. Finally, I should deal with two discrete points relied upon by Picken J (see paragraph 36 above)

59. First, he suggested that the fact that the criterion in Article 14(1)(a) is in terms of whether the competent authority "considers" that the victim's stay is necessary is of some significance.  However, in my view, the word does not support the Secretary of State's contention that a discretion is left to each state to decide the criteria that should be applied.  Rather, as Mr Westgate submitted, it simply means that the competent authority has to make an assessment of whether the criteria are met in a given case.  It does not bear upon the scope of those criteria, which are laid down in the Convention itself and are not a matter for the states who are parties to it.

60. Second, contrary to the judge's view, I am unconvinced that paragraph 183 of the Explanatory Report gives any support to the construction which he favoured. That paragraph refers to a person's personal circumstances being "such that it would be unreasonable to compel them to leave the national territory"; but "compel" there is used in a very different sense from that in which it is used in the Secretary of State's policy guidance, i.e. as a verb meaning to require. The word is also used in a different context, where it is envisaged that a person will be removed from the United Kingdom, whereas, in the present context, the issue is whether it is necessary that a person should be permitted to stay here.

Conclusion
61. For those reasons, I consider that the Secretary of State's policy guidance documents fail properly to reflect the obligation imposed upon the United Kingdom in Article 14(1)(a) of the Trafficking Convention.

62. I would consequently allow the appeal. Subject to the further submissions of the parties on the terms of the order, I would quash the order of Picken J, make a declaration that the relevant policy guidance is unlawful, and quash the Secretary of State's decisions of 10 October 2013 and 16 January 2015.

Published on Bailii,13/02/2018, https://is.gd/rr7MUI



SM (Algeria) (Appellant) v Entry Clearance Officer


UK Visa Section (Respondent) – UKSC 2015/0243

On appeal from the Court of Appeal Civil Division (England and Wales)

The issue in this case is whether the Appellant is a “direct descendant” or “extended family member” within the meaning of Regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006.

Mr and Mrs M are French nationals exercising free movement rights. In 2011 in Algeria Mr and Mrs M became legal guardians of the Applicant under the Kafalah system (Islamic equivalent to adoption). The Applicant later applied for entry clearance to come to the UK as a family member of an EEA national exercising free movement rights under the Immigration (European Economic Area) Regulations 2006. Her application was refused.

The Supreme Court unanimously holds (1) that it does have jurisdiction to hear the appeal, Sala having been wrongly decided; and (2) refers three questions to the Court of Justice of the European Union for a preliminary ruling.

Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under ‘kefalah’ or some equivalent arrangement provided for in the law of his or her country of origin, a ‘direct descendant’ within the meaning of article 2.2(c) of the Directive?

Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?

Is a member state entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child into the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of the child?

More details at: https://www.supremecourt.uk/cases/uksc-2015-0243.html






Mohammed Hussein, and Muhammad Rahman  – Handed Down Judgment

Both claimants are adult men of the Muslim faith who were detained at Brook House immigration removal centre (IRC) at Gatwick Airport.  Both claimants claim that the conditions and regime at Brook House interfered with their required religious observance as, they say, devout Muslims, and that the conditions and regime have a differential and discriminatory impact upon them as Muslims, not experienced by those of other faiths or of no faith at all.  This is said to follow from a combination of the hours of "lock-in" (as the claimants choose to call it) or "night state" (as the defendant prefers to call it) at Brook House when detainees cannot leave their rooms; the required times of Muslim prayer; room sharing; and the presence within the room of a lavatory cubicle without a door. The Secretary of State for the Home Department (SSHD) admits within these proceedings that she has to date failed to discharge her duty under section 149 of the Equality Act 2010 to have due regard to whether these circumstances have a discriminatory impact. 

Outcome In summary -
(i) I grant permission to both claimants to apply for judicial review on grounds (V), (VI) and (VII) of their respective amended grounds.

(ii) I grant permission to Mr Rahman to apply for judicial review on ground (VIII) of his amended grounds.

(iii) I refuse permission to both claimants to apply for judicial review on any other grounds.

(iv) I declare that in continuing to authorise and/or permit the maintenance of the lock-in (or night state) regime at Brook House and/or the conditions of the detention generally and/or in the claimants' cases, the SSHD failed to have any regard to the public sector equality duty under section 149 of the Equality Act 2010.

(v) I declare (subject to precise drafting by counsel) that the night state or lock-in regime at Brook House, in conjunction with the presence of internal unclosed lavatories and shared rooms, (i) constitutes indirect discrimination contrary to Article 9 of the European Convention on Human Rights read with Article 14,  which is unlawful unless justified; and (ii) unless justified, constitutes unlawful indirect discrimination contrary to section 19 of the Equality Act 2010   No such justification has yet been shown by the SSHD.

(vi) I declare that the practice and policy of permitting smoking within any of the areas of Brook House which are enclosed or substantially enclosed, including the detainees' rooms, was, at the time the claimant Mr Rahman was detained there, and still is, unlawful.

(vii) I declare that insofar as DSO 2/2014 applies to Brook House or other private IRCs it is unlawful.

(viii) I decline to make any mandatory orders.

Read the full judgment, https://is.gd/TVtQRB  



Potential Loophole in UK Immigration Law Due to ‘Good Friday Agreement’

This week the Home Office have been told they cannot appeal a decision made by a Belfast first-tier tribunal in November last year, which, under the 1998 Good Friday agreement, allows Irish citizens to identify as Irish and not British. This distinction allows access to more liberal EU free movement laws for Irish citizens born in Northern Ireland.

In 2015, Emma DeSouza, born in Derry, North Ireland, made an application for an EU residence card for her American husband, which was refused as the Home Office stated that under the British Nationality Act 1981, people from Northern Ireland are automatically British, even if they do not hold a British passport. Given this position, Ms DeSouza and her husband would need to apply under the normal routes for third country nationals unless Ms DeSouza renounced her British citizenship and re-applied, as she was advised to do by the Home Office. Ms DeSouza however, was not prepared to do this as she considered herself Irish and has never held a British passport.

The Home Office’s decision to refuse the application was challenged on the grounds that as an Irish citizen, Ms DeSouza was simply exercising her freedom of movement rights as a EU citizen when applying for her husband to obtain a residence card. The first tier-tribunal ruled in favour of Ms DeSouza owing to the unique 1998 Good Friday agreement, which recognises the birth right of all the people of Northern Ireland to identify themselves as Irish or British or both – as they so choose.

The Home Office were not successful in their appeal of this decision to the first-tier tribunal as they were told that there was ‘no error in law’ however they do still have the option to appeal to the upper tribunal. The Home Office may well challenge this decision further as it raises important issues on nationality in Northern Ireland. Whilst the immediate effect of this decision is minimal - as it only applies to Irish citizens who were born in Ireland, only hold Irish passports AND only identify as Irish, it is an area of law that provides a back door to very stringent UK immigration laws and allows family members of Irish citizens to use the Good Friday Agreement as a way of bypassing stricter UK domestic immigration rules.

In a statement the Home Office confirmed it is currently deciding whether to launch a further appeal.

Posted by: Gherson Immigration, https://is.gd/r8dP5O



Permanent Residency for EEA and Swiss Nationals and Their Family Members

As the Brexit process continues towards the UK exit from the EU, European nationals residing in the UK must look for the best way to protect their legal rights to remain in the country. If you are an EEA or Swiss national, or the family member of an EEA or Swiss nationals, you can enter and reside in the UK, free of any visa restrictions until the UK formally exits the EU.

If you have lived in the UK for many years as an EEA or Swiss national, or their family member, you may want to consider applying for permanent residency in order to secure your right to remain post-Brexit. This status shows that you are settled in the UK. Although EEA nationals are not currently required to have a document confirming their rights, such documents will be required once the UK exits the EU.

You can currently apply for a permanent residence document as an EEA or Swiss national, if you’ve lived in the UK for 5 years or more and have exercised your EU treaty rights. You can apply by either filling in the online form or the paper form and then posting it. The fee for such an application is the modest £65. Apart from the form, you will be required to provide a number of supporting documents confirming that you have resided and exercised your rights in the UK for the last 5 years. Once you have been issued with a document confirming permanent residence, and you have held this for over 12 months, you may be eligible to apply for British nationality.

Read more:   Gherson Immigration, http://bit.ly/2Ejwa6C



B (Algeria) (Respondent) v SSHD (Appellant)


[2018] UKSC 5 On appeal from [2015] EWCA Civ 445

The court orderedthat no one shall publish or reveal the name or address of the Respondent  who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Respondent or any member of his family in connection with these proceedings.

Justices
: Lady Hale (President), Lord Mance (Deputy President), Lord Hughes, Lord Hodge, Lord Lloyd-Jones

Background to the Appeal
The Respondent (“B”) has been in the UK since 1993. He was originally detained under section 21 of the Anti-Terrorism, Crime and Security Act 2001 and was subsequently subject to a control order under the Prevention of Terrorism Act 2005. On 11 August 2005, he was notified of the Secretary of State’s intention to make a deportation order against him on national security grounds. He was detained under Schedule 3 of the Immigration Act 1971 (“the 1971 Act”) pending deportation. He appealed, using a false identity, to the Special Immigration Appeals Commission (“SIAC”) against his deportation.
The UK Government sought assurances from the Algerian authorities that, if returned to Algeria, B would not be subject to treatment incompatible with Article 3 of the European Convention on Human Rights (“ECHR”). On 10 July 2006, the Algerian authorities confirmed that the details of his identity given by B were those of an individual present in Algeria. On 19 July 2007, SIAC ordered B to provide details of his true identity. On 30 July 2008, SIAC held that the Secretary of State’s case against B on the risk to national security had been made out. On 26 November 2010, SIAC held that B had disobeyed its earlier order of 19 July 2007 and imposed a prison sentence on B of four months.

Following his eventual release from prison, bail conditions were imposed on B. On 13 February 2014, SIAC held that there was no reasonable prospect of removing B to Algeria and the ordinary legal basis for justified detention under the Immigration Acts therefore fell away. Thereafter, the Secretary of State did not authorise B’s further detention and his bail conditions were relaxed.

B’s appeal against the notice of decision to deport him was struck out by SIAC in light of his continuing contempt of court. SIAC also rejected B’s submission that, following SIAC’s findings of 13 February 2014, it no longer had jurisdiction to grant bail to B or to impose bail conditions. This decision was upheld by the High Court. B appealed to the Court of Appeal, which allowed his appeal on the ground that SIAC had no jurisdiction to impose bail conditions on B if his detention would be unlawful.

On 12 December 2016, SIAC allowed B’s substantive deportation appeal. As a result, B’s bail fell away and it is common ground that the immigration power is now unavailable. The Supreme Court granted the Secretary of State permission to appeal against the decision of the Court of Appeal on the issue of SIAC’s bail jurisdiction.

Judgment
The Supreme Court unanimously dismisses the appeal. Lord Lloyd-Jones gives the lead judgment with which the other Justices agree.
Reasons for the Judgment
The so-called Hardial Singh principles concerning the operation of the detention power contained in paragraph 2 of Schedule 3 to the 1971 Act form an important part of the background to this appeal. These principles are that (i) the Secretary of State must intend to deport the person and can only use the detention power for that purpose; (ii) the deportee may only be detained for a reasonable period; (iii) if it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period then he should not seek to exercise the power of detention; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal [24-25].

At the heart of the case is a dispute about what the correct approach to the availability of immigration bail is when the Hardial Singh limit on actual detention is reached. The Secretary of State suggested that a purposive interpretation of the legislation should apply so that bail is available regardless of whether the individual is lawfully detained or would hypothetically be lawfully detained [28].

The Court saw no basis for such an approach. It is a fundamental principle of the common law that Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear. This was a situation where the principle of legality was in play. Accordingly, the Court was required to interpret the statutory provisions strictly and restrictively [29].

It was common ground that being “detained” was a condition precedent to the exercise of the power to grant bail conferred by paragraphs 22 and 29 of Schedule 2 to the 1971 Act. Applying the strict approach to interpretation, the Court found that the reference to “detained” means lawful detention [30-31].

Furthermore, “detained” does not only refer to the state of affairs which must exist at the time when the power is first exercised. Unless there is a continuing power to detain, the system of bail would encounter substantial difficulties in operation [32].

Where it ceases to be lawful to detain a person pending deportation there is no longer a power of detention under paragraph 16 of Schedule 2, and there is therefore no longer a power to grant bail under paragraphs 22 or 29 [33].

The Secretary of State submitted that as both bail and temporary admission or temporary release are “ameliorating possibilities” of alternatives to detention, it is sensible for both powers to persist for some duration beyond the point at which actual detention can no longer continue. Temporary admission or release is covered by paragraph 21 of Schedule 2. However, unlike paragraphs 22 and 29, it refers to a person “liable to be detained” and not “detention” which is a material difference. Accordingly, the comparison does not assist the Secretary of State [34-39].

The Court did not agree with the Secretary of State’s submission that the interpretation of paragraphs 22 and 29 favoured by the Court of Appeal would lead to impracticability in their application. In any event, if administrative inconvenience is a consequence the remedy lies with Parliament [40-45].

The Court found considerable modern authority which supported the Court of Appeal’s statement of principle that the power to grant bail presupposes the existence of and the ability to exercise the power to detain lawfully. [47-51].

However, this is not necessarily a principle of universal application. While the clearest possible words would be required to achieve a contrary result, Parliament could do so [53].

In the circumstances it was not necessary to address the arguments under Article 5 ECHR which added nothing to the resolution of the issues on appeal [56].

UK Supreme Court, http://bit.ly/2sjkcEF