News & Views Monday 29th June to Sunday 5th July 2020


France: Inhuman and Degrading Living Conditions of Homeless Asylum-Seekers Violation of Article 3

In Chamber judgment in the case of N.H. and Others v. France the European Court of Human Rights held, unanimously, that there had been: a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights in respect of the applicants N.H. (no. 28820/13), K.T. (no. 75547/13) and A.J. (no.13114/15). The applications concerned five asylum-seekers, single men, living in France. They complained that they had been unable to receive the material and financial support to which they were entitled under French law and had thus been forced to sleep rough in inhuman and degrading conditions for several months. The Court observed that the applicant N.H. had been living in the street without any resources; this was also the case for K.T. and A.J. who had only received the Temporary Allowance after 185 and 133 days respectively. In addition, before being able to register as asylum-seekers, N.H., K.T. and A.J. had been forced to survive for a certain period without any evidence of that status.

The French authorities had failed in their duties under domestic law. They were found responsible for the conditions in which the applicants had been living for several months: sleeping rough, without access to sanitary facilities, having no means of subsistence and constantly in fear of being attacked or robbed. The applicants had thus been victims of degrading treatment, showing a lack of respect for their dignity. The Court found that such living conditions, combined with the lack of an appropriate response from the French authorities and the fact that the domestic courts had systematically objected that the competent bodies lacked resources in the light of their status as single young men, had exceeded the threshold of severity for the purposes of Article 3 of the Convention. The three applicants N.H., K.T. and A.J. had thus found themselves, through the fault of the French authorities, in a situation that was incompatible with Article 3 of the Convention.

Woman loses Legal Challenge to NHS Charges For Pregnant Migrants

A woman who faces decades of repayments to the NHS for maternity care has lost a case in the high court challenging the government’s healthcare charging regime for migrants. The woman, who cannot be named, brought the legal challenge along with the charity Maternity Action, which works to end inequality and improve healthcare for pregnant women. It will come as a blow to hundreds of impoverished migrant women who are pregnant. Last year Maternity Action provided advice to 400 such women.

The woman, who had been subjected to female genital mutilation and is incurring NHS charges of £10,636 for maternity care – a debt she is paying back at £10 a month – argued that the charging regime for migrants deters, delays or denies access to healthcare for pregnant women, those giving birth or those who need postnatal treatment. She and the charity were seeking permission to judicially review government policies but the judge, Mrs Justice Whipple, rejected the case. Whipple said she was not granting permission for the case to proceed, not because of “a lack of sympathy” for the disadvantaged group the case applied to, but because the case had been brought out of time as it referred to charging rules introduced by the government in 2015. She could not see a legal basis for the claim, which related to matters of policy, which needed to be addressed by parliament, and not to matters of law.

Read more: Dianne Taylor, Guardian,

Do You Have to be Under 18 to Rely on the Seven Year Long Residence Rule?

Fair play to the litigants and their lay representative for their perseverance in the Scottish appeal case of Saleemi [2020] CSIH 32. Their tenacity is remarkable: the Home Office refused their applications for leave to remain, the First-tier Tribunal refused their appeals, the Upper Tribunal refused to grant permission to appeal, and a judge of the Outer House refused permission for a judicial review. Despite all of those adverse decisions, they managed to persuade the highest court in Scotland that the First-tier Tribunal arguably got it wrong — and that there is an important point of legal principle at stake.

The first of the three litigants was a 17-year-old child on the date of his application under the seven year rule in paragraph 276ADE(1)(iv), which requires the application to be “under the age of 18 years”. By the time his appeal came around, he was 19. The First-tier Tribunal judge did not give him the benefit of the more favourable Article 8 assessment that a minor would receive.

Lord Brodie summarises the issue: should then the FTT have treated the first petitioner as the adult he was at the date of the hearing, or as the child that he had been at the date of his application? The court accepted this is an important point of principle, although this particular judgment does not actually resolve it. That will be for another judge to determine, if the judicial review proceeds to a substantive hearing. So good news for the family — but they still have a long way to go.

Read more: Freemovement,

Five Migrant Families Criticise Further Delay to Birmingham Crush Deaths Case

The families of five migrant workers who were crushed to death at a scrap metal plant four years ago say they have been treated “as if our lives do not matter” after the criminal investigation was hit with further delays. The men, who were from the Gambia and Senegal and were employed on zero-hours contracts, were killed on 7 July 2016 when a 3.6-metre wall and 263 tonnes of metal collapsed on top of them at the Hawkeswood Metal Recycling site in Birmingham. The deaths of Almamo Jammeh, 45, Ousmane Diaby, 39, Bangally Dukureh, 55, Saibo Sillah, 42, and Muhamadou Jagana, 49, are believed to be the single biggest loss of life at a recycling plant in the UK. Despite a four-year criminal investigation by the Health and Safety Executive (HSE) and an inquest’s finding that the risk of the tragedy was foreseeable, no one has yet been arrested or prosecuted over the deaths.

The men’s families say they were distraught after being told recently that the investigation had been delayed further, despite “repeated promises” from the HSE that it would decide whether to prosecute the scrap metal firm Shredmet, which owns the site, before the fourth anniversary next week. The families say they feel they have been treated differently because of their heritage. In a nod to the Black Lives Matter movement, they said: “This news has caused us grief and anguish. We have met with delay at every stage of the process. We demand justice and accountability. We are five black families, from Gambia and Senegal; it is as if our lives do not matter. Our lives do matter.”

Read More: Josh Halliday, Guardian,

 Tougher Deportation Laws for Illegal Migrants and Offenders

Priti Patel’s latest plans to overhaul the UK Immigration Rules include tightening the laws concerning illegal migrants and offenders in an attempt to “protect our borders” and curb abuses of the asylum system by those who do not have a right to be in the UK. It is understood that the Home Secretary’s ambitious plans would target the “prompt removal” of failed asylum applicants by preventing the pursuit of last-minute appeals and “further submissions” as asylum applicants would be forced to present all their arguments and evidence at the outset of their claim. With regard to foreign offenders, Priti Patel envisages enforcing the “prompt removal” of criminals sentenced to imprisonment of 12 months or more, although she admits this would be a big challenge. Other proposals include automatic prison sentences for deported offenders who return to the UK.

Notwithstanding the UK’s inability (courtesy of the European Convention of Human Rights) to secure the removal of offenders or failed asylum seekers to states where they could be at risk of torture, inhumane treatment or other violence, the proposals may remain “undeliverable due to the legal and logistical obstacles that cannot be easily overcome” said David Wood, a former Director General of immigration enforcement at the Home Office.

Posted by: Gherson Immigration,

‘Black Lives Matter’ - Taking Legal Action to Combat Police Brutality

Multiple instances of police misconduct have been brought to the public attention as a result of the recent Black Lives Matter movements. The misconduct highlighted has ranged from discrimination against black, Asian and minority communities to overt, unjustified and unnecessary violence – which might unequivocally carry the title ‘brutality’. When police officers behave in this manner, it is likely to constitute a breach of S6 HRA and would therefore constitute a breach of an individual’s human rights. Section 6 of the Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way that is incompatible with person’s rights under the European Convention on Human Rights (‘ECHR’). As a public authority, the police must observe S6 HRA and refrain from behaviour which might contravene ECHR rights. Unfortunately, many people affected by misconduct at the hands from the police may not be aware of the legal options available to them. There is much that can be done to ensure justice is pursued and redress achieved. Claims against the police involve a variety of circumstances and include: Protest related - Wrongful arrests - Assault and battery- False imprisonment / Deprivation of liberty - Unlawful searches

Making a complaint: It is possible to make complaints against the police, against a particular force, an individual officer and any other member of police staff. Complaints can relate to those claims mentioned above but also in some circumstances where police have not followed correct procedures or have otherwise contravened their own Code for Professional Conduct. Complaints made to the police in England and Wales should be made to the relevant police force and can sometimes be investigated, or managed, by the Independent Office for Police Conduct (‘the IOPC’).

Read more: Duncan Lewis,

In the case of C-754/18 Ryanair the Court of Justice of the European Union has concluded that a non-EU national who holds a permanent residence card from one EU state, is under EU law, exempt from any domestic law requirement to hold a visa to enter another EU state. The judgment effectively overrules the Court of Appeal judgment in Ryanair v Secretary of State for the Home Department [2018] EWCA Civ 899 (see our write up of that earlier case here: Carriers’ liability: Ryanair challenges the Secretary of State – and loses).

The CJEU reaches this conclusion despite there being no express provision to this effect in Directive 2004/38: only a residence card is specifically mentioned. This was no barrier to the CJEU, which considered it absurd and counterproductive for one of the benefits of a residence card to be lost when the status is upgraded to permanent residence.

The court also finds that other member states must accept a permanent residence card issued in a different member state as proof that status is genuinely held. This runs contrary to the current Home Office interpretation of the significance of possessing residence documentation issued in EU countries.

The judgment is an important one for airlines and for passengers, given that carrier liability laws were until now effectively forcing airlines to deny boarding to non-EU family members with permanent residence cards and no visa.

Read more: Freemovement,

Pregnant and Disabled Asylum Seekers Placed in Hotels for Months During Lockdown

Hundreds of asylum seekers including pregnant women, disabled people and young children have been living in hotels across the UK for months, where they are restricted to set meals and given no financial support for travel and basic essentials, The Independent can reveal. People waiting for decisions on their asylum claims began being moved into dozens of hotels at the end of March, after the Home Office ordered its asylum housing contractors to source additional accommodation in anticipation of backlogs in the system following the decision to pause asylum evictions in response to Covid-19. Charities have warned of a deterioration in mental health and wellbeing among those in the 33 hotels that have been procured by the contractors across the country. While in the hotels, asylum seekers are stripped of their financial support of £5.39 a day on the basis that they are provided with meals, leaving them unable to buy additional supplies such as toiletries and baby milk, and unable to use public transport.

The Home Office admitted on Wednesday that there may be problems around leaving people without financial support for three months, with the second permanent secretary telling MPs that the immigration minister was “looking at” the issue. All three contractors, Mears, Serco and Clearsprings, have raised concern about the cuts to asylum support. It comes after concerns about the conditions for asylum seekers living in hotels were heightened in the wake of an unprovoked knife attack at one of the hotels in Glasgow, where a resident stabbed three other asylum seekers, two staff and a police officer.

Read more: May Bulman, Independent,

Migrant Enquiries About Benefits Double During Pandemic

Citizens Advice reports that the number of migrants with no recourse to public funds asking for help claiming benefits has more than doubled during the coronavirus pandemic. In March, April and May, the charity fielded 1,538 enquiries about lifting the NRPF condition, compared to 731 in the same period last year.

Migrants with no recourse to public funds face intense suffering if thrown out of work by the coronavirus-induced economic crash, since they cannot fall back on the welfare system. The potential scale of the problem is illustrated by the Migration Observatory at the University of Oxford, which shows that there almost 1.4 million people on a visa that comes with NRPF as standard. Some can apply to have the condition lifted, and plenty will not be out of work, but even a small proportion of so large a number being affected would be a considerable problem.

Citizens Advice also points out that the crisis is having a “disproportionate impact” on people of colour, with 82% of people asking for NRPF advice over the past year being from a black, Asian or other minority ethnic background.

Read more: Freemovement,

Covid-19 Worsening Plight of UK Migrants

The coronavirus pandemic has intensified the effects of the hostile environment on undocumented migrants in the UK, with many experiencing loss of income, unsafe working conditions and scared to seek help if they have the virus, a report has found. The Kanlungan Filipino Consortium and human rights charity RAPAR uncovered evidence of exploitative employment and overcrowded living conditions, making physical distancing impossible. More than half of Filipino migrants surveyed had lost all of their work and income and others were paid as little as £2 an hour. One was living in a five-bedroom flat with 13 other people, all of whom had Covid-19 symptoms. Out of the 78 respondents, 59 of whom were undocumented, 13 had experienced coronavirus symptoms but only one had sought medical care, highlighting fears about costs and being reported to the immigration authorities.
Maria Nola, a registere

d nurse in the Philippines, who is undocumented, said: “You are stressed with the financial things. You are stressed because [what] if you get it [Covid-19] and then you pass it on? It’s been three months now – no money. Your mood is very low. You don’t even want to move, you don’t even want to get up. It is depression.” Nine out of 10 survey respondents were care and domestic workers, and none did work that could be carried out from their own home. Many reported losing work because of the risk of transmitting coronavirus to employers, pushing them into more desperate circumstances. John, who has asthma and lives with his partner and their four-year-old autistic child, said: “Even if it’s dangerous, even if it’s risky for me, I have to go out and work to provide for my family.” Several studies have found people from ethnic minorities to be at greater risk of testing positive for and dying from coronavirus than the white British population. Filipino workers – of which there are 18,500 working in the NHS – have featured heavily among the healthcare workers who have died from Covid-19.

Read more: Haroon Siddique, Guardian,

Home Office Announce They Will Increase Asylum Support by 26p per day

Asylum seekers cannot work and are ineligible for benefits but can apply for Asylum Support (formerly known as National Asylum Support or NASS). On 8 June, the Home Office announced that they would be increasing Asylum Support by just by £1.85 per week, or 26p per day (from £37.75 a week for people who are awaiting a decision on their asylum claim, and £35.39 for those who have been refused asylum in the past). This is at a time when the Home Office, even before lock down,  have allowed delays in decisions on asylum claims of more than a year to develop in many cases, leaving people reliant on Asylum Support far longer than would be the case in a properly managed asylum process.

Asylum seekers are one of the most isolated and vulnerable groups in society and asylum support is significantly less than mainstream benefits . Choose Love reports “Before the Covid-19 pandemic, asylum support rates were already significantly less than mainstream benefits; following the uplift, it is now barely 40% of the allowance people over 25 receive on Universal Credit.”

We support the Refugee Council’s open letter and encourage other organisations and individuals to do the same. We call on the Home Secretary to mark Refugee Week by reconsidering this decision urgently and taking the necessary steps to protect asylum seekers and their families.

Read more: Leigh Day,

“Alarming Lack of Oversight and Accountability” at Short-Term Holding Facilities

The prisons inspector has recommended a national overhaul of the short-term detention system after an inspection of the Home Office’s 13 short-term holding facilities (STHFs). The report by the Chief Inspector of Prisons paints a picture of mismanagement and lack of governance on the part of Border Force, the agency in charge of STHFs. Senior Border Force staff did not even know how many STHFs there are, amending the list of facilities given to inspectors several times. The report says that this “suggests an alarming lack of oversight and accountability”. The inspection found poor physical conditions in several facilities. One seaport facility was described as “particularly filthy”, and few had showers or toiletries. This is despite some STHFs clocking up lengthy average detentions, far longer than the facilities are designed for. At Harwich, the average length of detention was almost 15 hours.
The inspection also found that there was no formal induction of detainees, meaning that the immediate needs of vulnerable detainees could not be recognised. This led to some vulnerable detainees being held for far too long. On one occasion, a pregnant woman was detained for nearly 27 hours with the detention log showing “little meaningful engagement” to update her on her detention. In Poole and Portsmouth STHFs, children were routinely handcuffed irrespective of risk. STHF practices have been overlooked by the courts in the past, and this lack of judicial oversight may have contributed to some of the issues identified by the inspection. The inspector made 22 recommendations, which the Home Office says it is taking “seriously”.

Read more: Freemovement,


General Grounds For Refusal: Owing a Litigation Debt to the Home Office

Statement of changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. Such debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or tribunal orders the other party to pay the Home Office’s costs.

The relevant rules are found at: paragraph 320 (23) of part 9 of the Immigration Rules for entry clearance applications; paragraph 322 (13) of part 9 for leave to remain applications; paragraph S-EC.3.1. of Appendix FM for entry clearance applications on the basis of family life; paragraph S-LTR.4.4. of Appendix FM for applications for leave to remain on the basis of family or private life; paragraph 10A of Appendix Armed Forces for applications by members of the armed forces, civil employees and their family members; and paragraph V3.14A of Appendix V for visitor visa applications.

This power to refuse is “discretionary”, as opposed to mandatory. That means the Home Office should not automatically refuse applications where there is a litigation debt, but will need to take into consideration a number of factors, as outlined in its guidance.

Read more: Freemovement,

The Secretary of State for the Home Department has confirmed that as of 1 July 2020 she will be increasing the subsistence amounts for non-asylum seeking victims of trafficking to bring it in line with those who have claimed asylum. She also confirms in a newsletter to her stakeholders that “This change is the first step in delivering a need-based financial support policy. Over the coming months, the Home Office will engage with Victim Care Contract Providers and key stakeholders and make further improvements to the current system to ensure the financial support is focused on individual victims’ needs, including helping victims to transition to other more suitable services to help aid recovery”.

Shalini Patel, the solicitor who brought the challenge, comments: “I am very pleased that this challenge has resulted in a positive change which will impact so many victims of trafficking who are pregnant or have children. Pregnancy is a time of increased vulnerability and anxiety for all women. For victims of trafficking this period brings back memories of long-term trauma. A number of women are pregnant when they enter the National Referral Mechanism and a number of those fall pregnant as a result of sexual exploitation. To have discriminated against this extremely vulnerable group for so long has been another shameful chapter in the government’s treatment of trafficking survivors. I am glad this challenge has brought about a long-term change.”

Read more: Duncan Lewis,