News & Views Monday 28th September to Sunday 4th October 2020


Woman Wins UK Legal Fight Over Unlawful Deportation to Uganda

The Home Office has lost a case in the court of appeal against a 27-year-old lesbian asylum seeker it was found to have unlawfully removed from the UK and was forced to fly back to the UK in the summer of 2019. The ruling on Monday follows a seven-year battle for the woman in her search for a place of safety. The Home Office removed the woman, known as PN, from the UK in December 2013 under a system that operated at the time called detained fast track.

That system was subsequently found to be unlawful. More than 10,000 cases were decided in the period when this system was operational but PN was the only person the Home Office was ordered to fly back to the UK. After returning PN to the UK the Home Office went to the court of appeal to argue that her removal to Uganda was not unlawful. Had the Home Office won its case PN would have potentially been at risk of removal to Uganda for a second time. But Monday’s ruling has given her the green light to continue with her asylum appeal. The court also found, in response to an appeal lodged by PN, that most of the time she spent locked up in Yarl’s Wood immigration removal centre in Bedfordshire was unlawful. As a result she will be in line for substantial damages from the Home Office.

Read more: Diane Taylor, Guardian,

Mandatory Self-Isolation Law Overlooks Vulnerable Migrants

In a bid to slow the surge in COVID-19 cases, Prime Minister Boris Johnson last night set out new restrictions in England which range from the wearing of masks by shop workers to limits on the number of people attending weddings. These measures come hard on the heels of a new legal duty to self-isolate, announced by the Health Secretary on 21 September, which the government says everyone must follow. But is that realistically possible for all migrants in the UK?

What is the new self-isolation law? It will now be a legal requirement for those who test positive for coronavirus, and those identified as close contacts of confirmed cases, to self-isolate. People in England who are told to self-isolate by NHS Test and Trace face fines of up to £10,000 if they do not. Previously, self-isolation was recommended but not legally required. To encourage compliance, people on benefits who cannot work from home may get a one-off payment of £500.
Why will it be harder for migrants to comply? These rules significantly fail to reach out to people without immigration status and those subject to immigration control in the UK. The government says that “people who are in receipt of benefits in England will be eligible” for the £500 Isolation Support Payment. But undocumented migrants and most people under immigration control cannot access welfare benefits or any kind of financial support from the government. If they want any income at all, they have to go out to work. They are often employed by rogue employers who will not allow them to self-isolate. Most are caught between the dangers of contracting or spreading the virus at work, or falling into destitution. Stripped of employment rights, and reliant on explotative employment for their own financial survival, the undocumented cannot report these unscrupulous employers.

Read more: Freemovement,

EU Settled Scheme: Can We Trust The Official Statistics?

Home Office statistics indicate that as of 31 August 2020 the EU Settlement Scheme has received 3,910,100 applications since its debut in 2019. This number includes both online and paper applications. What is not presented, and worryingly unknown, is how many EU/EEA nationals have not applied under the Scheme, or more generally, are currently present in the UK. What is even more concerning is how many of this unknown population are even aware of the scheme’s existence, let alone their need to secure their immigration status in the UK as a result of Brexit. There seems to be no concrete way of ascertaining this unknown number, and therefore efforts must be made to promote awareness of the EU Settlement Scheme’s existence, the reason for its existence, and what steps must be taken to apply under the scheme.

It would appear that a majority of those who are aware of the scheme, do not fully understand how it operates. For example, many of those who have gained Pre-Settled Status under the EU Settlement Scheme do not understand that this grants the holder five years of leave in the UK, at which point another application under the scheme is required for Settled Status. It would appear that most applicants assume that Pre-Settled Status will automatically roll over to Settled Status. The combination of these two points lays out a rather worrying outcome over the next five years, and has the potential to cause trouble for both the Home Office and those looking to rely on the EU Settlement Scheme to secure their status in the UK.

Read more: Gherson Immigration,

End of the Tier 2 Cooling-Off Period is on the Horizon

Whilst we are all awaiting new Immigration Rules for the Skilled Worker route, which will replace Tier 2 (General) in the new Points-Based Immigration System, some good news is starting to emerge. The cooling-off period, which has seen many a skilled migrant having to spend a year outside the UK before they can return to work, will not be carried over to the new Skilled Worker route.

The Home Office has been actively engaging with stakeholders in recent weeks to explain some of the finer details of the system. The slide below is from a Home Office presentation this week. It says at the bottom that “there will be no ‘Cooling off’ periods in the skilled worker route”. The cooling-off period rule has created havoc for vast numbers of skilled migrants, and their employers, under both Tier 2 (General) and Tier 2 (Intra-company Transfer). Only recently, I was advising a client who is in the UK under Tier 2 ICT and wants to settle here. Because ICT does not lead to settlement, she would need to persuade her employer to pay her at least £159,600 — the current higher salary rate threshold under Tier 2 — if she was to avoid spending a year outside the UK before re-entering under Tier 2 (General).

Read more: Freemovement,

Immigration Health Surcharge Increase to £624 delayed

The Immigration Health Surcharge will no longer increase from £400 to £624 on 1 October 2020 as originally planned. The draft order setting a 1 October date for the increase has been replaced by a new draft order which still hikes up the surcharge but only comes into force 21 days after it is made into law. Since it hasn’t yet been made, it cannot come into force on the 1st.

The new version of the order is almost in place, though: it has been approved by the House of Commons (on 22 September) and the House of Lords (on 23 September). That means all it needs is a minister’s signature to become law and start the 21 day countdown. But even if it were signed today, the earliest it could come into force would be 15 October — a bit of breathing space for those scrambling to complete applications before they become more expensive. The revised order also provides that applicants for a Health and Care visa are exempt from paying the surcharge. A reduced rate of £470 will apply to students, dependants of students, Youth Mobility visa holders and anyone under 18.

Read more: Freemovement,

Migrants Responsible for Growth in Top Incomes and Taxes in the UK

A study conducted by an academic group organised by the University of Warwick has found that almost a quarter of the highest paid roles in the UK are filled by migrants. The study calculated that migrants constitute 24% of the top UK income taxpayers (i.e. those earning more than £128,000 per annum), and singlehandedly contribute up to 8% of total income tax in the UK. According to research based on HM Revenue & Customs tax records, high-income migrants paid approximately £16 billion in income tax in 2019-20.

The study addresses the common perception that low-skilled migrants take British jobs, which was a driving factor leading many British nationals to vote to leave the European Union. Arun Advani, Impact Director at the CAGE research centre at Warwick University, noted the misplaced concern that migration is a burden on the UK economy, stating “A lot of the worries about migrants are about the bottom end of the distribution. But, actually migrants are hugely prevalent at the top of the income distribution – and therefore paying more tax”.

Migrants are even more established in the top 0.001% of UK-based earners. It has been found that four in ten earners within this bracket are migrants. Comparatively, only one in six people are migrants amongst low-income groups. The findings suggest that companies in the UK create jobs aimed at highly-skilled and high-income migrants paying UK taxes, and “firms poach high paid, mid-career workers from abroad and place them straight into top-paid positions. All of this points to an essential role of foreign specialist expertise in the UK economy”.

Read more: Gherson Immigration.

EU Deportation Protections Continue After Brexit

From next year there will be two categories of EEA national: Those who began their residence in the UK before 31 December 2020; and Those who began their residence in the UK after 31 December 2020. The law a person is subject to will depend on which category they fall into. Family members of EEA nationals will be similarly categorised. They get all the same rights as the EEA citizen, even if they are a national of a non-EEA country. The EU law rules on deportation will continue to apply to EEA nationals and their family members who fall within the first category. For those in the second category, the harsher UK rules on deportation will apply. This has been the government’s policy for a long time. But it has only just published the legislation to make this the case: the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

Preserving the old EU law rules on deportation: The government has a new habit of revoking European laws and then immediately reinstating them. It did this with the European Communities Act 1972, which was repealed on 31 January 2020 but continues to have effect for the duration of the transitional period. This somewhat confusing legislative mechanism seems to be how the government has decided to ensure certain aspects of EU law continue to apply after Brexit. The same thing will happen with the EEA Regulations on 1 January 2021. They will be revoked, but continue to apply in modified form. This is necessary to ensure that EEA citizens who relocated to the UK before 31 December 2020 can continue to benefit from EU free movement law and its more lenient approach to deportation (as required by the Brexit Withdrawal Agreement).

Read more: Freemovement,

Important legal Update - Possession Proceedings Evictions of Failed Asylum Seeker

At least 14 days' notice of eviction is now required in both the County Court and High Court. No enforcement of possession orders will proceed where local lockdown measures are in place to protect public health or, other than in the most serious cases, over the Christmas period. All cases (stayed and new) will ordinarily proceed to a Review (the 'R-date') and then, where necessary, a Substantive Claims brought on or after 3 August - Covid-19 notices For all claims brought on or after 3 August 2020, the Claimant must bring to the hearing two copies of a notice which, amongst other things, sets out the knowledge the Claimant has of the effect of the coronavirus pandemic on the Defendant and their dependents. There is no pro forma notice currently available for this purpose, but the wording used in the reactivation notices could provide a useful template. As commentators have observed, there is no associated legal duty to make inquiries as to the effect of the pandemic on tenants and no apparent sanction for failing to provide any information. Nevertheless, it may be that a court will adjourn a case and direct inquiries be made if the notice provided contains no useful information.hearing (the 'S-hearing').

Read more: Doughty Street Chambers.

Information Commissioner Orders Home Office to Disclose Data to ‘No-Deportations’

No-Deportations’ made an FOI request, 23 April: ’Number of people forcibly removed from the UK on Charter Flights (Escorts and Removals) Q1 January/February/March 2020’: Immigration Enforcement replied: Thank you for your Email of 23 April, in which you ask for information about Charter Flights in 2020. The information which you have requested is being considered under the exemption in section 31 of the FOIA, which relates to law enforcement. This is a qualified exemption, and to consider the public interest test fully we need to extend the 20-working day response period. We now aim to let you have a full response by Monday 22 June.

No response was forthcoming from Immigration Enforcement. A request from the Information Commissioner to the Home Office, to respond was ignored.

On the 14 September the ICO issued a formal decision notice, informing the Home Office, that they had failed to complete its deliberations on the balance of the public interest within a reasonable time and had therefore breached section 17(3) of the FOIA. Further: The Commissioner required the Home Office to take the following step to ensure compliance with the legislation. • Having confirmed that information is held within the scope of the request: either disclose the requested information or issue a refusal notice in accordance with the requirements of section 17 of the FOIA. The Home Office must take this step within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.

8) On the same day, the Home Office complied with the ICO decision, disclosing to myself the information they held on deportation charter flights for Q1 January/February/March 2020.

Read more: