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News & Views Monday 26th October to Sunday 1st November 2020

 

Asylum Seekers Sue UK Over Unlawful Detention

A group of asylum seekers, including victims of torture, who were illegally detained in the UK are suing the Home Office. More than 20 people have launched a claim for compensation, which lawyers believe could be owed to thousands held unlawfully between January 2014 and March 2017, a time when concerns about the government’s “hostile environment” policy towards migrants were paramount. The claimants were arrested and detained by the UK Border Force under Home Office guidance and the Dublin III regulation, which states that refugees must claim asylum in the first EU country in which they arrive. The regulation permitted the detention of asylum seekers before they were returned to the country of their arrival in Europe – but only if there was a significant risk of them absconding and if it was proportionate. n November 2019 the supreme court found that the Home Office policy was unlawful and ruled that the claimants were entitled to substantial damages.

Read more: Jame Doward, Guardian, https://is.gd/ASFeQZ



Government Reduces Minimum Salary for Migrants to Settle in UK

Steve Valdez-Symonds, refugee and migrant rights programme director, said: “Sadly, this latest development does not appear to signal any new or firm commitment to encourage equality of opportunity through the UK’s immigration system or to respect the rights and human dignity of all women, men and children regardless of class or colour.” However, Migration Watch UK, which campaigns for tighter immigration control, said the move would reduce the incentive for employers to train British workers.

The government has quietly reduced the £35,800 minimum salary for migrants to settle in the UK by almost 30%, it has emerged. Migrants on salaries of £20,480 but with enough points under Boris Johnson’s new Australian-style immigration system to qualify for jobs where there is a shortage of workers will also be entitled to settle after six years and become citizens. The rules, which come into force on 1 December, were published on Thursday by the Home Office, with the general threshold lowered to £25,600 as the government tacitly acknowledged the essential contribution that lower paid migrant workers make to the UK. Amnesty International UK said it was troubled by the way immigration rules, including salary thresholds, “have long exaggerated the privilege of people already advantaged by their relative wealth, gender and race”.

Read more: Mattha Busby, Guardian, https://is.gd/nNxl0m



Building a Case Based on a Child’s Best Interests: Practical Tips

“Forcing me to leave the UK will not be in my child’s best interests” is a phrase often used by parents seeking to remain in the UK. Enny Choudhury has written an excellent briefing note on the body of law behind the phrase and the Home Office’s duty to consider the best interests of children in the UK affected by its decisions. This article tries to build on that by outlining how the law on best interests can be used in practice to support an immigration case.

When are a child’s best interests relevant in immigration law?
Those seeking leave to remain in the UK on human rights grounds might cite a child’s best interests as part of a wider proportionality argument under Article 8 of the European Convention on Human Rights. Others might rely on paragraph 276ADE(1)(iv) of the Immigration Rules to apply for leave on behalf of a child that has lived in the UK for at least seven years. Foreign criminals seeking to resist deportation may cite the child’s best interests in arguing that their deportation would be “unduly harsh” on the child. In some outcomes, the child will be forced to depart with the parent; in others, the child may be left behind without that parent (if for example the child is British and lives with the other parent).

Read more: Freemovement, https://is.gd/MRwJ8f



Supreme Court Finds Treatment of Skilled Worker Unfair

The Supreme Court held in R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 that the Home Office’s treatment of a Tier 2 skilled worker, Mr Pathan, was unfair. Mr Pathan had applied for an extension of his visa as a sponsored worker in good time but his application was refused several months later after the Home Office had, without telling him, revoked his employer’s sponsorship licence. This revocation meant that Mr Pathan’s application was, ultimately, doomed to fail.

As Lady Arden put it: if he is kept in ignorance as to his sponsor’s shortcomings, he will not know about any revocation unless the Secretary of State informs him. There is something deeply unsatisfactory about the Secretary of State being able to take that decision which may have a profound influence on the life of the applicant, without any obligation to tell him. It is after all knowledge which is peculiarly in the Secretary of State’s possession.

Mr Pathan was left unlawfully resident in the UK with no warning and, after reforms by Theresa May during her time as Home Secretary, no right of appeal. The Supreme Court has now, by a majority, quashed the decision to refuse Mr Pathan’s extension request.

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



GK v HS: Appeal Allowed Not Safe to Return Appellant On Medical Grounds

1. In a decision promulgated on the 30 June 2028 it was found a Judge of the First-tier Tribunal, through no fault of his own, had erred in the assessment of whether it was reasonable in all the circumstances for the appellant to internally relocate to Kabul as such assessment had been undertaken on the basis of incomplete evidence.

2. Directions were given for there to be a Resume hearing which took place on the 24 September 2020 remotely with the appellant attending assisted by a representative of the Greater Manchester Immigration Aid Unit. No interpreter was present, but the appellant is clearly fluent in English and all parties were content to proceed on the basis the matter did not require additional evidence to be given on the basis the matter was able to proceed by way of submissions only.

3. The preserved findings from the decision of the First-tier Tribunal are that the appellant faces a credible real risk in his home area but that he will be able to return to Kabul and live there with his brother. The scope of the Resumed hearing was limited to consideration of the reasonableness of internal relocation to Kabul when considering all relevant aspects, including the appellant’s age, medical condition, finding of family support the family can provide for a short or initial period, and other issues identified in detail in the country guidance case of AS (safety of Kabul) (Afghanistan) [2020] UKUT 130(IAC).

6. It is not disputed that the Supreme Court in AM (Zimbabwe) [2020] UKSC 17 lowered the threshold previously established in N v UK but it still maintained a high threshold by reference to the applicable test. The medical evidence, including the expert reports, supports the claim the appellant will face a real risk of being exposed to a serious, rapid, and irreversible decline in his state of health resulting in intense suffering or a significant reduction in life expectancy and that any serious, rapid, or reversible decline in health leading to intense suffering or the substantial reduction in life expectancy will arise as a result of the absence of appropriate treatment in Afghanistan or the lack of access to such treatment.

7. Mrs Pettersen was unable to show that medical assistance or treatment that was required is available in Afghanistan or that the appellant will have access to the same.

8. I find it established, pursuant to AM, that there will be a breach of article 3 ECHR at the very least on medical grounds if the appellant is returned to Afghanistan. Such a scenario makes it unreasonable in all the circumstances to expect the appellant to return and internally relocate to Kabul even if his brother is able to provide him with accommodation and practical support.

9. It is a preserved finding that the appellant faces a real risk of persecution in his home area. As it has not been found there is a reasonable viable relocation option the appellant is entitled to succeed with his asylum claim. The appeal is allowed on this basis.

BAILII: https://is.gd/Eii5Ae



 

 



 

AJJ v HS Appeal Allowed: Would Not be Reasonable to Expect Children to Leave the United Kingdom

1. The Appellant is a citizen of Nigeria. His date of birth is 10 July 1984. He made an application for leave to remain based on his family life here. This application was refused by the Secretary of State on 18 September 2018. The Appellant appealed. His appeal was dismissed by Judge of the First- tier Tribunal Judge Walker in a decision dated 24 October 2019 which was promulgated the same day, following a hearing at Taylor House on 29 August 2019.

4. The Appellant came to the UK on 4 September 2004, having been granted leave as a student until 31 October 2008. He made an application for leave to remain as the spouse of a settled person on 21 April 2008. This application was rejected on 30 April 2008. He made another application for leave to remain as the spouse of a settled person on 2 May 2008. This application was granted until 13 May 2010. The Appellant made an application on human rights grounds on 17 May 2010. His application was rejected on 27 May 2010.The Appellant made a further application on 17 February 2015. He was granted leave outside of the Rules until 1 November 2017. He made an application on human rights grounds on 30 October 2017 based on his relationship with his children. The application was refused by the Secretary of State on 18 September 2018. The Respondent decided that the Appellant had not provided evidence to support his claim of a genuine and subsisting relationship with his children. The Respondent did not accept that the Appellant met E- LTRPT.2.4 or EX1.1. of Appendix FM.

40. I conclude that the evidence of photographs and the evidence of the Appellant and NW establishes that the Appellant’s relationship with his children is a genuine and subsisting parental relationship. While they were not credible about their own relationship and the case advanced before the First-tier Tribunal was exaggerated, it is difficult to see (in the absence of a finding that the Appellant has manipulated a relationship with his children to bolster his case) why NW would support the Appellant’s appeal in the absence of a parental relationship from which her children would benefit.

41. The First-tier Tribunal focused on the Appellant’s credibility in respect of his relationship with NW and where he was living, but neither of these issues is determinative of the issue in respect of his children. It may have been a recently resumed or established relationship which would explain the lack of historic evidence, but nevertheless the evidence was sufficient to establish a genuine and subsisting relationship with his children.

43. I find that the Appellant has a genuine and subsisting parental relationship with his children. Considering all the circumstances, I find that it would not be reasonable to expect the children to leave the United Kingdom. The appeal is allowed under Article 8.

BAILII: https://is.gd/V7XuZI



Nightmare on Asylum Street: His House, the Horror Film About the Migrant Crisis

There has never been a whole lot of overlap between the social realism of Ken Loach and the twisted horror of A Nightmare on Elm Street. But that’s about to change with the release of His House, a strikingly original debut from the gifted British film-maker Remi Weekes, which was snapped up by Netflix at Sundance earlier this year for an eight-figure sum. His House follows a South Sudanese couple – Wunmi Mosaku as Rial, Sope Dirisu as her husband Bol – who are dumped on a bleak Essex housing estate while their appeal for asylum is considered. Their temporary home is blighted by peeling walls, dodgy wiring and hostile neighbours. Worse than that, it’s haunted. If they flee, Rial and Bol risk deportation for violating bail. Stay, however, and they will need to do battle with the wall-dwelling creatures, which appear to have followed them from Africa.

This isn’t the first film to use the conventions of horror to address this modern crisis: Mati Diop’s Atlantics imagined the women of Dakar being possessed by the ghosts of migrants who had perished at sea. But it is undoubtedly the scariest. His House thrives on two types of threat, the social and the supernatural, each intensifying the other. Horror audiences will be accustomed to figures lurking in the back of the frame – it’s just that, in this case, there’s no knowing whether it will be a scuttling monster, a meddling immigration official, or a lout.

Read more: Ry;;an Gilbey, Guardian, https://is.gd/rfGl9M



What Should Reparations For Slavery Look Like?

In the UK, West Indian sugar plantations brought billions of pounds in today’s money to the British economy. It helped build the British Empire’s wealth, strength, and might – using Black people as tools and draining the Caribbean of its natural resources. And that economic strength is indivisible and intrinsic to the superior socio-economic position of Britain in the world today – making it one of the wealthiest countries in the world. This is something that is a direct consequence of the profits from slavery and colonialism; one that must be acknowledged with steps to address it.

The debate around reparations for colonialism and slavery has often been an explosive one. It is often dismissed as far removed from reality, relating to events in the distant past. But the legacy and consequences of colonialism are material, living, and breathing – which makes debates around colonial restitution as relevant now as they have ever been. Never was this clearer than when David Cameron, the former British Prime Minister, paid a visit to Jamaica in 2015. He had arrived to provide funding for a prison, which sparked outrage among Jamaicans. Portia Simpson Miller, the then prime minister, said that Jamaica wanted reparations for slavery – not prisons. The British government refused, but it did nothing to diffuse this sentiment in the Caribbean. Indeed, just last month Barbados announced its decision to remove the Queen as their Head of State, one of the starkest reminders in West Indian countries of British colonisation.

Read more: Nadine Batchelor-Hunt, Each Other, https://is.gd/R62xPH



Welcome Court of Appeal U-Turn on Ten-Year Lawful Residence Gaps

In Hoque & Ors v SSHD [2020] EWCA Civ 1357 the Court of Appeal addressed the issue of gaps in lawful residence in ten-year long residence applications.

It found that the previous authority of R (Masum Ahmed) v SSHD [2019] EWCA Civ 1070 – which held that any applicant who had overstayed for any period of time in between visas would be ineligible to apply for indefinite leave to remain after ten years of otherwise lawful residence – was incorrectly decided.

In the course of making its decision, both the Secretary of State and the Immigration Rules in general come in for some pretty robust criticism.

Read more: Freemovement, https://is.gd/UCw91I




?ND v HS: Appeal Allowed Not Safe to Return Ethnic Kurd to Iran

1. The appellant, who is an Iranian national of Sunni faith and Kurdish ethnicity, with date of birth given as 18.9.93, has appealed to the Upper Tribunal with permission against the decision of the First-tier Tribunal promulgated 18.12.19, dismissing on all grounds his appeal against the decision of the Secretary of State, dated 19.10.19, to refuse his claim for international protection.

19. Given that the appellant would be under suspicion on return as a failed asylum-seeker, and particularly because of his Kurdish ethnicity, it can be assumed that the Iranian authorities will question him and, I am satisfied, will likely ask him about any anti-Iranian or pro-Kurdish political activity in the UK and require him to disclose any social media account details. Even if there are no social media accounts to disclose, the judge not being satisfied that they would have come to the attention of the Iranian authorities, the judge did accept and made findings of fact that the appellant attended “one or two” pro- KDP demonstrations and a HDK event where he was photographed with the party leader. As is also clear from Country Guidance, the appellant cannot be expected to lie when questioned about this political activity. On the basis of the Country Guidance of HB (Kurds), the threshold for suspicion is low, the reaction reasonably likely to be extreme and, “... involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.”

22. It seems to me to be inevitable that on return the appellant will be questioned and it must be taken as likely that he will disclose the sur place activity accepted by the judge to have taken place. Given his Kurdish ethnicity and this, albeit low-level, political activity, HB (Kurds) confirms that the Iranian authorities are likely to take action against the appellant which will at the very least infringe article 3 ECHR. Even if not likely, the risk is more than sufficient to cross the threshold of the lower standard of proof.

23. In the circumstances and for the reasons set out above, I find such material error of law in the decision of the First-tier Tribunal so that it must be set aside and remade. On the findings of fact, the appellant has demonstrated to the lower standard of proof that he will be at risk of persecution or treatment infringing Article 3 ECHR arising out his accepted sur place low-level anti- regime and pro-Kurdish activities.

Decision: The appeal of the appellant to the Upper Tribunal is allowed. The decision of the First-tier Tribunal is set aside.

I remake the decision in the appeal by allowing it on asylum grounds, alternatively humanitarian protection grounds, and alternatively human rights grounds.

BAILII: https://is.gd/WNhjgG








 


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