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  News & Views Monday 25th September to Sunday 1st October 2017  
Nurses Who Failed Strict English Test Aimed at Curbing Immigration Set for a Reprieve

Language rules introduced to curb immigration are set to be relaxed after they prevented native English-speaking nurses from working in the NHS. The NHS has a shortage of 40,000 nurses and recruiters and NHS employers have been lobbying for looser language requirements so that thousands of nurses from countries such as Australia, India and the Philippines can work in Britain. In June, the Observer uncovered evidence that Australians and other native English-speaking nurses were being turned down because they could not pass the International English Language Testing System test. Now the Nursing and Midwifery Council will consider a measure on Wednesday to allow other measures such as the Occupational English Test. Nurses with a recent qualification that was taught in English and nurses who have worked for two years in a country where English is the native language would also qualify. If patient organisations and NHS bodies also agree to the proposals, the changes could be introduced next month.

Read more: James Tapper, Guardian, http://bit.ly/2hsSzQu



Head of G4S Detention Centre Quits After Abuse Allegations

The head of a G4S-run immigration removal centre, which was the subject of an undercover BBC Panorama investigation over allegations of bullying and abuse, has resigned with immediate effect. Ben Saunders, the director of Brook House immigration removal centre (IRC) near Gatwick airport, was placed on administrative leave earlier this month.

G4S confirmed his departure. Jerry Petherick, managing director for G4S custodial and detention services, said: “Ben Saunders has resigned from his role as director of Gatwick IRCs. “Lee Hanford will be taking up the role of interim director of Gatwick IRCs with effect from Monday 25 September pending the eventual appointment of a replacement director.”

Read more: Caroline Davies, Guardian, http://bit.ly/2xB2ehT




CPIN: Algeria: Sexual Orientation and Gender Identity

1.1 Basis of claim 1.1.1 Fear of persecution or serious harm by the state and/or non-state actors due to the person’s actual or perceived sexual orientation and/or gender identity.

1.2 Points to note

1.2.1 This note provides policy guidance on the general situation of gay men, lesbians, bisexuals and transgender persons. They are referred to collectively as ‘LGBT persons’, but the experiences of each group may differ.

1.2.2 The country guidance case OO (Gay Men) (CG) [2016] UKUT 65 (IAC) (26 January 2016) replaces the earlier country guidance case of OO (gay men: risk) Algeria CG [2013] UKUT 63 (IAC) (08 April 2013) (see paras 3 and 4 of OO 2016 determination).

Published on Refworld, 25/09/2017
http://www.refworld.org/docid/59c8bbad4.html



Tribunal Can (But Won’t) Hold Home Office in Contempt For Ignoring Consent Orders


The facts of R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 198 (IAC) involved the not uncommon scenario of the Home Office withdrawing its decision in response to an application for judicial review, agreeing a consent order which included an agreement to pay the costs of the claimant and to make new decision be made within a certain time and then failing to comply with that consent order. As an aside, this is why the headline figures on success rates for applications for judicial review are so misleading: because a very significant number of claims are settled. out of court in the claimant’s favour.Read more:  Colin Yeo, Freemovement, http://bit.ly/2jWQMHX



Further Guidance from Upper Tribunal on Withdrawal of Immigration Appeals


Not much to say about this one, but clearly it is important in those cases where the Home Office does withdraw a decision once the appeal has been lodged. Official headnote:

(i)  The public law character of appeals to the FtT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinised, per rule 17 of the FtT Rules and rule 17 of the Upper Tribunal Rules.
(ii)  Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or appeal is required.

(iii) Every judicial determination of an appellant’s proposal to withdraw an appeal or the Secretary of State’s proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.

(iv)  Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.

(v)  The outcome of the judicial scrutiny should be briefly reasoned.

(vi)   Rule 29 of the FtT Rules is confined to the substantive determination of appeals.

(vii)      The power of the FtT to set aside a decision under Rule 32 is exercisable only by the FtT President and the Resident Judges.

(viii)    In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the FtT under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.

Source: Freemovement, http://bit.ly/2wg9FYi





Trump's Latest Travel Ban: What's New, Who's Covered, and Why Now?

On Sunday evening the Trump administration issued its third travel ban in less than a year, opening yet another chapter in the heated legal and civil rights battle that has dominated much of the president’s first nine months in office. Trump’s ban has gone through many iterations, from a chaotically implemented first attempt that was blocked by a series of federal courts, to a streamlined version that was refined even further by the supreme court and eventually allowed to come into effect in June. With all the legal challenges, policy revisions, and Trump’s own incendiary rhetoric on immigration, it has been hard to keep up with what has often felt like a set of ever-evolving restrictions. In the latest twist, the supreme court announced on Monday it had cancelled arguments on the ban set for 10 October, asking for updated briefings from the government and the ban’s challengers.

What is new about the latest ban? The restrictions now target more countries than before. Trump’s last ban was aimed at travellers from six Muslim-majority countries and all refugees. The new ban now targets the issuing of visas for citizens of eight countries, five of which – Syria, Iran, Somalia, Yemen and Libya – were included in Trump’s first two bans, and three of which – North Korea, Chad and Venezuela – were added in the latest ban. The order will also place Iraqi travellers under “additional scrutiny”, but does not ban entire visa classes as it does with the other eight nations. Trump’s first and second ban sought to freeze the issuing of visas from the targeted countries for 90 days to allow the Department of Homeland Security to assess worldwide screening and visa vetting procedures. By contrast, the new restrictions announced on Sunday are essentially indefinite, although the administration has said it will review them if the targeted countries improve co-operation with the US government.

Read more: Oliver Laughland, Guardian, http://bit.ly/2fNgVo5




Home Office Wrongly Denying People Bank Accounts in 10% Of Cases

As many as one in 10 people refused a new account because they failed an immigration status check were wrongly denied access to Britain’s banking system because of mistakes in Home Office records, according to an official watchdog. An examination of Theresa May’s existing “hostile environment” measures against illegal immigrants by the chief inspector of borders also found that hundreds of driving licences had been wrongly revoked after Home Office mistakes in identifying people as remaining in Britain unlawfully. David Bolt, the chief inspector of borders and immigration, said – after uncovering the 10% error rate in refusing new bank accounts in his 2016 report – that the Home Office “failed to appreciate the potential impact of such wrong decisions on those affected”.

Read more: Alan Travis, Guardian, http://bit.ly/2yuZUae



Muasa v SSHD [2017] EWHC 2267

In this case the High Court handed down a ruling finding that the segregation of the claimant at Yarl’s Wood Immigration Removal Centre (IRC) was unlawful and in breach of Article 8 of the European Convention of Human Rights (ECHR). On 27 July 2017, the High Court handed down judgment in the case of Muasa v SSHD (CO/6378/2016), in relation to the Claimant’s challenge to her removal from association (segregation) at Yarl’s Wood Immigration Removal Centre (IRC) in August 2016 under the Home Office’s powers granted under Rule 40 of the Detention Centre Rules. Rule 40 allows the Home Office (or in cases of urgency, the IRC manager) to segregate a detainee from the rest of the detention centre population where it appears necessary in the interests of safety or security. Authorisation is required both upon the initial segregation and again to continue beyond 24 hours. Under Rule 40 of the Detention Centre Rules this additional authorisation must be sanctioned by the Secretary of State and is of the utmost importance given that it allows IRC’s to hold detainees in segregation for up to a further 14 days.

The Claimant, a Kenyan national, is an asylum-seeker who was due to be removed from the UK despite there being independent evidence that she was a victim of torture following a childhood of abuse in Kenya. She was segregated over the 1st-2nd August 2016 for a period of approximately 28 hours in ‘preparation’ for her removal from UK. The Home Office justified this decision on the basis of a previous attempt to remove her on 5 May 2016 when the Claimant refused to leave the IRC as she had an outstanding application for leave to remain. The Home Office deemed her to be non-compliant and disruptive. On 19th May 2016 the Home Office attempted to remove the Claimant again, with which she was fully compliant, however the removal did not go ahead as she claimed asylum on the way to the airport. This was apparently not considered relevant to the decision to segregate in August.

The Claimant issued judicial review proceedings in November 2016 to challenge her removal from association on the basis that:

The Home Office had failed to provide a clear and transparent policy/framework as to how Home Office caseworkers and IRC detention managers should exercise the discretionary power to remove from association;

The common-law requirements of procedural fairness require that those removed from association should have a reasonable opportunity to make representations against their segregation before it is authorised beyond 24 hours. This would be in line with the approach in the prison context;

Both the Claimant’s initial segregation and the decision to segregate her beyond 24 hours were unlawful because they were not properly authorised under Rule 40;

The decision to segregate the Claimant, on the facts of her case, was irrational in all the circumstances; and

The Claimant’s segregation was in breach of Article 8 ECHR in that it interfered with her physical and psychological integrity, was not in accordance with the law, and was not a proportionate interference.

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



Take Charge Request - Under the Dublin Regulation

(i) In making a decision whether to accept a "take charge" request under the Dublin Regulation, the Secretary of State is obliged to take all material considerations into account and to comply with the "Tameside" duty of enquiry.

(ii) The Dublin Regulation and its sister instrument, Commission Regulation (EC) 1550/2003, subject the Secretary of State to duties of enquiry, investigation and evidence gathering. The discharge of these duties will be factually and contextually sensitive and is governed by the principle that the Secretary of State is obliged to take reasonable steps.

(iii) In a context where there are successive "take charge" requests and successive decisions in response thereto, the aforementioned duties apply throughout.

(iv) The aforementioned duties may also arise via the procedural dimension of Article 8 ECHR, under Section 6 of the Human Rights Act 1998.

(v) The principles rehearsed above may give rise to a remedy comprising a mandatory order requiring the Secretary of State to take all reasonable steps and use her best endeavours in certain specified respects.