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--Updated 28 September, 2016

  News & Views Monday 26th September to Sunday 2nd October 2016  
First The UK Deports People, Then It Denies Them Justice

One morning this month the families of more than 40 people deported on a private charter flight to Jamaica experienced the overwhelming loss of relatives being taken thousands of miles away from the communities where many had lived for decades.
But what’s next? Many on the charter plane were issued with a so-called right to appeal after being deported. This is increasingly issued to people removed on an individual basis via commercial flights, and to the many deported to countries such as Nigeria, Ghana, Jamaica, Pakistan and Albania. However, while the British Home Office recently commissioned a “returns reception centre” for deportees arriving in Nigeria, it offers no further support for those who wish to continue their legal battle after removal.

Guidance from the Home Office states: “When a person brings or continues an appeal relating to a protection claim from outside the UK … the appeal is to be treated as if the person were not outside the UK.” However, Jasmine Sallis, a founding member of Roots to Return – set up to support individuals pursuing out-of-country appeals – said: “The very fact that the individual is appealing from outside the UK means that an out-of-country appeal cannot be pursued, prepared for or processed in the same way that an in-country appeal is.”

Read more: Lotte Lewis Smith, Guardian, http://tinyurl.com/hs33rfe


Asylum for Lamin Saho from Gambia

Lamin, born 12/06/1985, is seeking Asylum in the UK as a Gay Man fleeing the extremely homophobic legal system and general anti-gay cultural attitudes in Gambia. The President, Yahya Jammeh, has frequently issued extremely anti-gay statements, often threatening death, to anyone thought to be LGBT. Such pronouncements fan the flames of hatred in this very conservative country, and fundamentalists from both Christian and Muslim communities respond readily to this rhetoric and are quite prepared to serve as God's "avenging angels" through vigilante actions These death threat statements have specifically included failed asylum seekers who are returned to their own country, such as Lamin.
We urgently call on the Home Office to lift forthwith the threat of Lamin's imminent removal to the Gambia, where he has a very real fear of persecution and probable death, in order to allow this manifest injustice to be challenged further and overturned.
The asylum process has reached the conclusion that there is no truth in Lamin's claim to be a gay man, although how anyone is supposed to be able to "prove" their sexuality - gay or straight - remains a mystery. The standard way in the UK these days is for a person to affirm their own sexuality for themselves, and indeed this is the very basis of LGBT people's membership of a Protected Group, namely sexual orientation, under the Equality Act 2010.

The asylum process has also argued that, because the Home Office consider that Lamin's claim to be gay is fabricated and without any merit, on the basis of their stereotypes of what constitutes a "true gay identity" or a "valid gay lifestyle" and by totally discounting and dismissing the testimony of various LGBT groups and services who attest to his membership of and involvement in the LGBT community, there is therefore no danger or risk to him if he were to be returned to the Gambia. 

Yet this is so illogical and totally contrary to the realities in each of these very different countries that it would be laughable if it were not so deadly serious. 

Friends of Lamin have set up a support Lamin petition: http://tinyurl.com/zably2c


‘It’s Time to Think Again About Immigration Detention’

In early September, the new Immigration Minister Robert Goodwill announced the closure of Dungavel, the only detention centre in Scotland.  The centre will be replaced in late 2017 by a short-term holding facility at Glasgow Airport, where migrants will be held for a few days just before removal.  The deeply unpopular indefinite detention of migrants in Scottish detention centres will come to an end. If there have been few celebrations of the demise of Dungavel, it is because everything depends on what happens next.  In the worst case scenario, this could be seriously bad news for migrants in Scotland in the return process.  If detention business continues as usual, after being detained, they will simply be transferred after a few days to an English detention centre.  Since there is no centre north of Lincolnshire, they will be many hours away from friends and family.

But more importantly, they will be in a different legal system: they may need to abandon any pending legal challenges in the Scottish courts, leave their Scottish solicitors, and start looking for a new English solicitor.  Convenient for the Home Office in attempting to remove them, one might say.

Those of us who defend migrants’ rights tend to assume the worst of the government’s intentions, and there is unquestionably a serious risk that this scenario will come to pass.  However, the closure of Dungavel does not take place in isolation.  This is the third detention centre to close in the last 18 months, after Halsar and Dover.

Read more: Jerome Phelps, Justice Gap, http://tinyurl.com/gsdok4


UK HO CIG Iran: Sexual Orientation and Gender Identity
Version 2 – September 2016
1.1 Basis of Claim
1.1.1 Fear of persecution or serious harm by the state and/or non-state actors because of the person’s actual or perceived sexual orientation or gender identity.
1.2 Points to Note
1.2.1 For the purposes of this guidance, sexual orientation or gender identity includes gay men, lesbians, bisexual and transgender (LGBT) persons though the experiences of each group may differ.
1.2.2 Decision makers should also refer to the Asylum Instruction on Sexual identity issues in the asylum claim.
Published on Refworld, 28/09/2016
http://www.refworld.org/docid/57ebb91f4.htm


 

Debunking Misconceived Points – SSHD Refusing to Accept Rule 35 Reports

 In a judgment handed down by the Administrative Court today 27/09/2016, Duncan Lewis has secured damages for a victim of torture. The Claimant was unlawfully detained for a short period at Harmondsworth Immigration Removal Centre (‘IRC’) by the Secretary of State for the Home Department. The judgment, *Jayeola v SSHD [2016] EWHC 2335 (Admin), which is attached, is helpful in debunking misconceived points commonly taken by the Secretary of State when defending decisions to refuse to accept Rule 35 reports as independent evidence of torture and consequently maintain detention. In particular, Judge Swift QC holds that:

 1 Chapter 55.10 of the Enforcement Instructions and Guidance “has a strong precautionary characteristic such that the application of the policy against detention does not depend on evidence that the detainee continues to suffer from any of the possible consequences of torture (or would do so if subject to immigration detention).” [26]

 2  It is immaterial that the IRC doctor conducting the Rule 35 report or anyone else at the IRC expressed “no cause for concern for the Claimant’s medical condition”: the pivotal and only question is whether there is independent evidence that the Claimant had been tortured in Nigeria: “given the way in which the material part of paragraph 55.10 of the EIG is formulated, I do not consider that reliance on the Claimant’s (good) health can provide the very exceptional circumstances that are required for immigration detention to be in accordance with the Secretary of State’s policy”. [41]

 3  It was held that it is “striking that the policy, as it applies to persons who may have suffered torture, does not seek to distinguish between persons who continue to suffer from the physical or mental health consequences of torture, and those who do not, or does not identify as material whether or not continuation of immigration might be likely adversely to affect the person concerned by reason of the fact that in the past he may have been tortured. [41]

 4 The exhaustion of appeal rights, the fact that the Claimant remained in the UK when he ought to have left voluntarily, the absence of any ties to the community which might assist release subject to conditions such as deporting requirements, did not constitute ‘very exceptional circumstances’ – “These matters do not approach that level”. [42]

 5   Applying Secretary of State for the Home Department v BA [2016] EWCA Civ 458, the Defendant and the Courts should avoid a prescriptive approach to an analysis of Rule 35 reports: “Although these process instructions are very useful in practice, they are no more than rules of thumb. What ultimately matters is the assessment of what happened in any particular case in which it is contended that following a Rule 35 report, a person has been unlawfully detained.”; “the requirement for independent evidence is a requirement for evidence that has a sufficient objective quality. [29]
 6 In respect of the provision at Chapter 55:10 of the EIG that if there is independent evidence of torture, detention would “normally” be suitable “only in very exceptional circumstances”, the use of the word “normally” adds nothing: “Thus if there is independent evidence that the Claimant had been tortured… his immigration detention would be contrary to the Secretary of State’s policy unless there were very exceptional circumstances. [30]

 The claimant was awarded substantial damages for the short period of unlawful detention.

 Legal Team: Toufique Hossain and Rebecca Carr at Duncan Lewis, Raza Halim counsel – Garden Court Chambers

*Jayeola, R v SSHD [2016] EWHC 2335 (Admin) (27 September 2016)


Sharia Councils: A Parallel Legal System For Women or a Requirement of Faith?

 Aina Khan, Head of the Islamic Department at the law firm Duncan Lewis and campaigner for better protection for women believes she has the answer. She launched her campaign ‘Register `Our Marriage’ in 2014 to lobby for a change in the law and to spread awareness of lack of rights.  “The Marriage Act 1949 must be updated to require all faiths to register their marriages. This would mean Muslims must register religious ceremonies under civil law, just like they do in every Muslim country. (For decades, Imams abroad have faced criminal prosecution if they carry out an unregistered marriage and the husband is declared on a woman’s ID card. There are also civil systems in place for divorce). This change in our law will give British Muslim women the right to a civil divorce and a share of matrimonial finances. This civil divorce can be simply mirrored by an Islamic divorce from a Sharia Council within a few weeks and at low cost. This is already being done by my Islamic Department, which does not charge a client for an Islamic divorce if they have already obtained a civil one, and the fee of the Sharia Council is £100. In contrast, if there has not been a civil marriage, the fee of the Sharia Council is £300-£400 because of the extra work needed to investigate the divorce application. Plus I am increasingly hearing complaints of one year plus delays and misogyny, which causes deep distress to women who are already suffering.

Duncan Lewis:  http://tinyurl.com/jxsjmd6


Canada Detains Hundreds of Children For Immigration Violations

Canada regularly detains hundreds of children who have run afoul of the country’s immigration laws – including some who are held in correctional facilities and even in solitary confinement, according to a new report calling for sweeping reforms to the practice. Between 2010 and 2014, an average of 242 children were detained across Canada over immigration violations, according to the International Human Rights Program at the University of Toronto. Their report, released on Thursday, sheds light on these detentions, which range in length from days to several months, and calls for urgent reform to a Canadian practice that has attracted consistent criticism from the United Nations.  “What’s happening with children in detention really runs counter to the narrative of Canada as a global human rights promoter,” said Samer Muscati, the report’s editor. “Canada has signed international agreements, including the Convention on the Rights of the Child, which clearly states that any detention has to be done as a last resort and for the least amount of time possible.”

Read more: Ashifa Kassam, Guardian, http://tinyurl.com/zdkovkd