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News & Views Monday 14th October to Sunday 20th October 2019

 

R oao IS (Bangladesh) Unlawfully Detained for Almost Five Months

Today, Tuesday 15th October 2019, the High Court ruled that our client was unlawfully detained for almost five months of the total 28 months that he was held in immigration detention, breaching his rights under Article 5 European Convention of Human Rights (ECHR). The Court also found that the 75 days that our client was under constant suicide watch breached his Article 8 ECHR rights to privacy.

Our client, who was 18 when he was first detained and has a history of self-harm and risk of suicide, challenged his detention on the grounds that it violated his rights under articles 3, 5 and 8 of the European Convention of Human Rights. He also challenged the adequacy of Rule 35 of the Detention Centre Rules 2001, which is the mechanism by which detainees’ medical concerns are reported by healthcare staff in the detention centre to the Home Office, and which trigger a review of the detention. This rule requires the detention centre’s medical practitioner to report the case of any detainee whose health is likely to be injuriously affected by detention, but excludes other medical professionals from the same obligation.

‘This case highlights the total inadequacy of the Home Office’s procedures for the identification of vulnerable people in immigration detention’, explains Lewis Kett, representing our client. ‘There was mounting evidence of our client’s high risk of suicide, and that detention was causing him further harm, and yet the Home Office repeatedly decided to maintain his detention. The fact that he was detained for 28 months is wholly unacceptable.’

In ruling that five months of our client’s detention was unlawful, the Court is strongly critical of the Home Office’s manner of dealing with our client’s suicide risk. The Court finds that this was clearly a chase where a Rule 35(2) report should have been issued and was not. While the Court did not go as far as declaring the Rule 35 process ultra vires for its exclusion of psychiatrists from the duty to report concerns, the Court found that there are clear failings in the management of detainees at risk of suicide in detention.

Read more: Duncan Lewis, https://is.gd/oYcyNuHome



Home Office 'Infiltrating' Safe Havens To Deport Rough Sleepers

The Home Office is using information gathered in “immigration surgeries” at charities and places of worship to deport vulnerable homeless people who are told that attending will help them get financial support, the Guardian has learned. Interviews and internal emails revealed the Salvation Army, Sikh gurdwaras and a Chinese community support centre are among the bodies allowing Home Office teams in London to run sessions in spaces that are intended to be safe havens for homeless people. Attendees are assured the sessions are not offered as part of “an enforcement approach” to immigration cases and told that taking part may help them regularise their status.

However, the initiative is run by the Home Office’s immigration enforcement unit and if officials conclude that attendees have no right to be in the country, they may be asked to agree to their voluntary removal. If they refuse they risk being subjected to the Home Office’s “case-by-case” discretion and deported. Experts said the practice allows Home Office officials to gain access to vulnerable homeless people they might otherwise not be able to locate and warned the approach was part of a broader strategy. Last year the Guardian reported that the homelessness outreach charity St Mungo’s was working with Home Office teams searching for rough sleepers to arrest and deport. The latest disclosures are supported by 46 pages of email exchanges between the Home Office and local council officials in Redbridge, east London, initially obtained by the Public Interest Law Centre, that shed light on the Home Office’s contribution to the government’s rough sleeping strategy.

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



Home Office Comes Out Fighting in New Guidance on False Representations

The Home Office has issued new policy guidance on when it will refuse applications on the grounds of deception or dishonesty, i.e. where an applicant has made a false representation. The guidance follows a serious defeat in the Court of Appeal earlier this year. In Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, the Court of Appeal ruled that the Home Office had unlawfully refused a large number of applications because it had not given applicants the opportunity to respond to an allegation of deception or dishonesty.

One might have expected the Home Office to respond by adopting a generous approach to procedural fairness in this type of case. Instead, policy-makers have decided to adopt a narrow view of Balajigari ‘s application that will surely lead to yet more litigation.

Read more: Freemovement, https://is.gd/UUNxJU



Ali Irbouh v Home Secretary

 1. The Appellant is a national of Algeria born on 13 July 1979. He arrived in the UK on 13 September 2008 as the spouse of an EEA national and was subsequently provided with a residence card as evidence of his right to remain in the UK issued valid until 28 April 2015. The marriage permanently broke down on 1 November 2013, his wife having moved out of the matrimonial home in 2011. In September 2013, the Appellant met L whilst on holiday in Algeria and they had a relationship. Ms L subsequently travelled to the United Kingdom and successfully claimed asylum.

2. On 1 July 2015, Ms L gave birth to a son. DNA results have confirmed the Appellant's paternity. The relationship between the Appellant and Ms L subsequently broke down but the Appellant maintains contact with his son on a very regular, almost daily basis. The Appellant made a further application for a residence card, which was refused on 2 October 2015. He appealed against this decision. His appeal came before the First-tier Tribunal for hearing on 21 April 2017 where First-tier Tribunal Judge Juss allowed the appeal with regard to Article 8 on the basis of his relationship with his son.

3. This appeal was subject to appeal to the Upper Tribunal on the basis that it had not been open to the judge to deal with Article 8 and in a decision and reasons promulgated on 1 September 2017, Upper Tribunal Judge Jackson found that the First-tier Tribunal had no jurisdiction to consider the appeal on human rights grounds and allowed the appeal of the Secretary of State.

25. I have concluded that there are exceptional circumstances, which would render the refusal of leave to remain a breach of Article 8 because it would result in unjustifiably harsh consequences for the Appellant's son. It is apparent from the evidence that the Appellant is actively involved in his son's life. This evidence comprises a supporting letter from the Appellant's former partner and mother of his son, a letter from his son's primary school stating that they see the Appellant frequently as he drops off and collects him regularly throughout the week and a number of photographs showing the Appellant with his son over a period of time. I find that whilst it would be in M's best interests to remain residing with his mother in the United Kingdom it would also be in M's best interests for him to continue to have regular contact with his father. I find it is material that M's status in the United Kingdom and that of his mother is that of a refugee and therefore, this is not a case where it can reasonably be expected that M would be able to visit the Appellant if he is removed to Algeria, given his young age and the fact that he would have to be accompanied by his mother.

Decision
26. I find material errors of law in the decision of First-tier Tribunal Judge Broe. I set that decision aside and substitute a decision allowing the appeal on human rights grounds (Article 8).

Source: https://is.gd/hoj7Wl



Asylum Research Consultancy Country of Information Update Vol. 203

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 September and 14 October 2019.

Download the full document: https://is.gd/UxmINI




'Alarmingly High' Number of Children Malnourished Worldwide

Across the globe, at least one-in-three children under-five are malnourished and not developing properly, UNICEF revealed on Tuesday, in its most comprehensive report on children, food and nutrition in 20 years.  “An alarmingly high number of children are suffering the consequences of poor diets and a food system that is failing them,” the UN children’s agency (UNICEF) warned. 

Around 200 million children under-five are either undernourished or overweight, while one-in-three globally - and almost two-thirds of children between the fragile ages of six months to two years - are not fed food that nurtures proper development, The State of the World’s Children 2019: Children, food and nutrition, found. The lack of adequate nutrition increases youngsters’ vulnerability to health problems, namely poor brain development, weak learning, low immunity, increased susceptibility to infections and in many cases, premature death.

Despite growing technological advances to address health and nutrition, the world has lost sight of “the most basic fact: If children eat poorly, they live poorly”, the agency’s Executive Director, Henrietta Fore said, explaining that millions of children are not living on healthy diets “because they simply do not have a better choice.” “It is not just about getting children enough to eat; it is above all about getting them the right food to eat. That is our common challenge today”, she urged.

The flagship report describes the “triple burden” of malnutrition: Undernutrition, overweight, and deficiencies in essential nutrients. While 149 million youngsters under-five have stunted growth, 50 million are too thin for their height - common signs of undernutrition.   Another 40 million in the same age bracket are overweight or obese, and at the same time, half of all children under five worldwide are not getting essential vitamins and nutrients, an issue UNICEF has dubbed “hidden hunger”.

Read more: UN News, https://is.gd/q2g9nU



Court of Appeal Cheatsheet on Human Rights in Immigration Cases

In GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, handed down on Friday, the Court of Appeal provides a helpful summary of where we currently stand with private and family life cases under Article 8 of the European Convention on Human Rights. General observations on Article 8

As many readers will already know, most private and family life cases turn on proportionality. This is a balancing exercise. Does the person’s right to respect for private and family life outweigh the public interest in maintaining firm and effective immigration control? The court outlines six “general observations” about the proportionality test, firing a few warning shots...

The court outlines six “general observations” about the proportionality test, firing a few warning shots at both the Home Office and at those who seek to rely on private and family life to stay in the UK:

Read more: Iain Halliday, Freemovement, https://is.gd/umpLW6



A D v Home Secretary (Criminal Deportation)

Decision And Reasons

1. The appellant entered the UK on 15 August 2002 and was granted leave to enter as a visitor until 13 September 2002. He was 16 years old on arrival in the UK. Subsequent applications for leave to remain as a student were refused. On 26 November 2003 he was granted leave to remain as a dependent of a person who was settled in the UK (his mother).

2. The appellant has a list of criminal convictions in the UK. In 2005 he was convicted of several different counts of possessing a blade or sharply pointed weapon in a public place and was given community punishment orders for those offences. In 2006 he was convicted of several driving offences including using a vehicle while uninsured and without a licence for which he received fines and endorsements. In 2007 he received a six-month conditional discharge for possession of cannabis. In 2008 he was given a 12-month conditional discharge for shoplifting. Further convictions followed in early 2009 for a breach of the conditional discharge and possession of cannabis for which he received small fines. By the time he was 23 years old the appellant was well known to the criminal courts, but none of his convictions were for offences serious enough to justify a custodial sentence. His history of relatively minor criminal convictions was not deemed sufficiently serious for the Secretary of State to consider deportation.

3. The picture changed in 2011. On 03 June 2011 the appellant was convicted of five counts of supply of Class A drugs including crack cocaine and heroin. On 08 September 2011 he was sentenced to 18 months' imprisonment for each offence to be served concurrently. A deportation order was signed on 21 August 2012. His appeal against the decision was dismissed on 13 March 2013. Further applications for permission to appeal were refused and his appeal rights became exhausted on 22 April 2013.

4. The appellant became liable to removal pursuant to the deportation order. It is unclear whether the Secretary of State took any steps to remove him the period immediately after the appeal. Even though he had been released from prison and was facing deportation, the appellant continued to commit offences. Several motoring and insurance related offences were recorded against him in April 2013. The sentences included a community order with a curfew requirement and an interim disqualification from driving. By July 2013 he was recorded as an immigration absconder because he failed to report when required. He was encountered on 05 November 2015 by the police when they arrested him pursuant to a warrant for failure to comply with a curfew order.

32. At the hearing, the appellant raised the issue of his claimed British nationality by descent. This was not previously a live issue in the appeal. The appellant was represented at the hearing before the judge. The issue did not appear to be argued before the First-tier Tribunal and was not determined. The appellant did not cross-appeal the First-tier Tribunal's failure to determine the issue. The issue had already been considered and rejected by the First-tier Tribunal in 2013. In a more recent application to the Family Court the application was rejected in robust terms. The stumbling block appears to be the refusal of the appellant's father ("LD") to take a DNA test. The bundle includes a copy of LD's British passport and his birth certificate. The evidence includes a copy of the death certificate of LD's father ("SD"). The death certificate records his son as the informant ("AD"). The appellant's bundle contains a DNA test which confirms that he is related to an uncle ("ED"). However, the missing link is any evidence to show that the appellant's uncle, ED, has common parentage with LD. No copy of his uncle's birth certificate seems to have been produced. The death certificate does not establish a link between SD and ED because the death was reported by a different son.

33. For the reasons given above we conclude that removal of the appellant would be unlawful under section 6 of the Human Rights Act 1998.

34. On this occasion the appellant has succeeded in his appeal. Subject to any subsequent determination of his claimed British nationality, the applicant should be aware that if he commits any further offences, especially offences of a serious nature, it will be open to the respondent to review whether it is appropriate to take further deportation action. We trust that this will act as an incentive to the appellant not to commit any further offences if he wishes to continue his family life in the UK.

Decision

The First-tier Tribunal decision involved the making of an error on a point of law

The decision is remade and the appeal is Allowed on human rights grounds

https://is.gd/Ga9iVu