News & Views Monday 23rd November to Sunday 29th November2020


Priti Patel Plans Pre-Christmas Mass Deportation Flight to Jamaica on 2nd December

At least 16 men have been detained at Colnbrook and Brook House immigration detention centres and several have been issued with Removal Directions for the 2nd December. Those detained include people who have been in the UK since early childhood and have British children. Many of the men have partners who are key workers and have been on the frontline of the COVID pandemic. If it goes ahead, the flight will be the second charter to Jamaica of the year, and the third since the Windrush Scandal broke in 2017. It comes amid fresh internal complaints of systemic racism within the Home Office following the resignation of Alexandra Ankrah, the most senior Black member of the Windrush compensation on grounds it is 'unfit for purpose', and while thousands of Windrush cases and compensation claims remain unresolved.

Lawyers and campaigners are warning that there is a real risk of unlawful removals, including of Windrush descendents and those who face real risks of harm or even death if removed. Between March 2018 – May 2019, at least five men deported from the UK to Jamaica were killed. According to a newly published poll carried out by ComRes[1] earlier this year, the majority of British people disagree with the automatic nature of the UK’s deportation laws. The UK's controversial deportation laws currently make it mandatory for the Home Office to seek the deportation of non-British citizens who receive a custodial sentence in the UK of 12 months or more, with no discretion to take other factors into account.

Source: Detention Action,

Home Office Accused of Cover-Up at Camp For Asylum Seekers

Volunteers have been asked to sign confidentiality agreements underpinned by the Official Secrets Act before entering an army barracks used to house asylum seekers, as details emerge of the “disturbing” conditions on the site. The Home Office has been accused of attempting to cover up what is happening at Napier barracks near Folkestone, Kent, where there have been hunger strikes, suicide attempts, unrest and regular medical emergencies among residents. Volunteers providing warm clothing, amenities, company and counselling to the 400 men housed on the site have been confronted with the confidentiality form by the private firm running the repurposed site on behalf of the Home Office.

The agreement, seen by the Guardian, commits the signatory to treating as confidential any information about the “service users” at the site – that is, the asylum seekers – and states that the information is subject to the Official Secrets Act, which is designed principally to protect matters of national security. A breach of the act is punishable by a prison sentence. Bella Sankey, the director of Detention Action, said: “The Official Secrets Act is intended to protect state secrets and national security, not the government’s treatment of people who have arrived in the UK seeking sanctuary. “Locking people up at an old army barracks is inappropriate enough, without trying to gag those who volunteer to provide basic essentials to those in need. We’ve heard reports of self harm, suicide attempts, Covid outbreaks and cramped and unsanitary dorms, meaning more – not less – public information is needed about this seemingly reckless experiment.”

Read more: Jamie Grierson, Gurdian,

Man threatened With Deportation to Jamaica Says His Life is On the Line

A Jamaican man threatened with deportation from Britain says his “life would be in danger” if he’s sent back in two weeks' time. John—not his real name—is one of at least eight people who have been booked onto a charter flight scheduled to take off on 2 December. “My life would be in danger,” he told Socialist Worker. “If I go back there, I know what would happen to me. “I wouldn’t last too long.” The Tories tried to deport John on the last Jamaica charter flight in February. He was taken off the plane at the last minute after a successful legal challenge blocked some of the deportations. John was locked up in Colnbrook immigration removal centre, near Heathrow Airport, after signing on at the Home Office’s Eaton House last Wednesday. He hasn’t been able to see his three children, aged 12, eight and five, or his pregnant partner since. “No visitors are allowed to come inside this place,” he explained. “My partner and my 12 year old daughter were sat outside for five and a half hours, waiting for the decision about me. “When I was detained on that day, I couldn’t say anything to them.”
John says the family is "finding it very difficult” because “we did everything by the book”. “My solicitor sent off the paperwork, with recorded delivery, to the Home Office a few weeks ago,” he said. “The Home Office said they’d tried to take £65 from my partner’s account and couldn’t, and that’s why my application was refused. “But that’s not true, my partner went to the bank and no one tried to take no money out and there is money in there.”

John was forced to flee Jamaica in 2002 after a gang tried to murder him. “In 2001, I was kidnapped,” he explained. “I used to run a minicab, and in Jamaica, if you are running a mini cab they feel that you should be paying them protection. “They kidnapped me, cut my wrists and shot at me as I was going over a fence.”

Read more: Socialist Worker,

How Does Brexit Affect Irish Citizens in the UK?

The UK government’s policy is that Brexit will not affect Irish nationals at all. Other EU citizens have to apply for a new “settled status” or risk losing their right to live and work in the UK after June 2021. But the government’s position is that Irish people, whether existing residents or future migrants, have a general right to live in the United Kingdom which is entirely separate to their rights as EU citizens: Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. This means that Irish citizens do not need to apply for status under the scheme. Nonetheless, Irish citizens can make an application under the scheme, should they wish to do so.

That policy is reflected in the Common Travel Area. The government uses this term to mean much more than passport-free travel in the British Isles: it also encompasses the idea that Irish people “are treated as if you have permanent immigration permission to remain in the UK”. That includes the right to vote, work, claim benefits and use the NHS. Perhaps the most important guarantee of Irish citizens’ unique position in UK immigration law is the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which exempts Irish citizens from immigration control. Section 2 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 provides that Irish citizens, like British citizens, may enter and remain in the UK without requiring permission (ie a visa) from the Home Office. It inserts a new section 3ZA into the Immigration Act 1971, which reads:

Read more: Freemovement,

Detention of Asylum Seekers Pending Extradition: How Lawful is it?

The European Court of Human Rights (“ECtHR”) has recently found Ukraine to be in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), which establishes the right to liberty and security. The decision confirmed the Court’s position on the detention of asylum seekers pending extradition. The case before the Court was of a Turkish national who was granted asylum in Ukraine in 2011. In October 2012, the Ukrainian authorities received an extradition request for the individual from Turkey, with the request specifying that the criminal charge was to become time-barred on 15 August 2013. Within several weeks, the individual’s refugee status was revoked on the basis that the applicant provided false information regarding the details of his persecution in Turkey, and he was subsequently detained with a view to his extradition. The individual appealed the revocation of his refugee status and also applied for subsidiary protection in March 2013. Both applications remained pending when the applicant was eventually released by court order on 30 August 2013, as the limitation period in respect of the criminal offences of which he was accused had expired. The individual’s submissions to the ECtHR were that his detention had been contrary to Article 5 of the ECHR, as his appeal and application for subsidiary protection were pending during detention and because his prosecution in Turkey became time-barred on 15 August 2013.

The Court considered that pending applications could not preclude detention in this particular case due to this being permitted under Ukrainian law. Although the ongoing proceedings did preclude extradition, if and when those proceedings ended unfavourably for the applicant, his extradition would become an immediate possibility – which is why his detention with a view to extradition was justified under domestic law. However, the Court supported the applicant’s view that his detention became unlawful after 15 August 2013, as after that date his extradition was barred under the European Convention on Extradition. The conclusion, therefore, was that the applicant spent 15 days in detention unlawfully (from 15 to 30 August) and the court held that he should be compensated for this period of time. The Court’s position was consistent with decisions it has made previously. Historically, the ECtHR always looks at the provisions of national law to establish whether detention pending an application for international protection is allowed in the country in question. What was unusual about this case was that Ukrainian domestic law does permit detention in these circumstances, unlike in some other countries (cases against which have previously been considered by ECtHR), for example, Greece. The ECtHR therefore confirmed its previous position and the existing case-law – even where the domestic law in question was prejudicial to the applicant.

Posted by: Gherson Immigration,

Paris Police In 'Shocking' Clash at Migrant Camp

French police violently dismantled a makeshift migrant camp in the heart of Paris overnight, clashing with migrants and activists. Interior Minister Gérald Darmanin tweeted that some of the scenes w"shocking", and ordered the police to provide a full report on their actions. Dozens of small tents were removed from Place de la République, with occupants sometimes being tipped out by police. The homeless migrants say they are forced to live on the streets. Volunteers had joined the migrants and, linking arms, the crowd - several hundred strong - chanted "papers for all, accommodation for all!" when police moved in. Police later used tear gas and chased people through the streets, using batons to hit some of them. The new makeshift camp in the centre of the capital appeared a week after police had dismantled a bigger, illegal migrant campsite near the French national sports stadium in northern Paris. "They are too violent," lamented Shahbuddin, a 34-year-old Afghan, quoted by AFP news agency. "We just want a roof." Ian Brossart, a Paris city hall official overseeing housing, condemned the "law and order response to a social situation".

Source BBC News,

Cruelty Of UK Deportation Law Deemed ‘Unavoidable Price to Pay’

In the UK, many parents are separated from their children as a result of deportation, regardless of whether they are loving and capable parents. The separation if often permanent, and the damage caused to the children left behind is severe and long-lasting. Bail for Immigration Detainees (BID) has produced a research report that documents the harm caused to children by forcible separation from a parent. The research provides an in-depth overview of recent academic insights and discussions and explores the effects of forced family separation in two different contexts – incarceration and deportation. BID is also releasing a self-help guide to enable the research to be used by unrepresented appellants in deportation appeals. The removal of legal aid for immigration cases brought about in the 2013 legal aid cuts means that independent expert report documenting the likely harm caused to the child (produced by a child psychologist or independent social worker, for example) are often prohibitively expensive for appellants. Whilst this is no substitute for such an independent expert report, it may provide useful additional evidence in a deportation appeal.

Imprisonment has far-reaching adverse consequences on the families and wider communities connected to prisoners. Outcomes for children of incarcerated parents are far worse on a number of different measures. Such children are more likely to have Adverse Childhood Experiences, are at significantly higher risk of mental health problems; more likely to suffer from nightmares, anxiety, and bedwetting. The effects of parental incarceration endure for considerable periods and are associated with a higher likelihood of offending, drug abuse, school failure and unemployment.

Read more: Rudy Schulkind, Justice Gap,

Pandemic Rules for Immigration Appeals Declared Unlawful

The High Court has declared that the arrangements for dealing with Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held that the President of the Upper Tribunal’s guidance leans too heavily in favour of deciding cases on the papers rather than having a hearing, a situation that is “inconsistent with basic common law requirements”. The tribunal must now write to everyone who lost a paper appeal since 23 March 2020 telling them to seek legal advice. The case is Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin).

23 March was when the President of the Upper Tribunal, Mr Justice Lane, issued Presidential Guidance Note No.1 2020 on “arrangements during the Covid-19 pandemic”. Paragraphs 9-17 of that guidance note dealt with “making certain appeal decisions without a hearing”. The “key question” for Fordham J was whether these paragraphs created an “overall paper norm”. In other words, was there a presumption or starting point that immigration judges should decide cases on the basis of the two sides’ written cases, without hearing oral argument? After lengthy textual analysis of the offending paragraphs, he concluded that is indeed what the guidance created: reading and interpreting the PGN objectively and straightforwardly, as a whole, in the light of its function and purpose, and having always in mind that it was directed in its application to an audience of UTIAC Judges – the PGN does communicate an overall paper norm. The answer to the Key Question is ‘yes’.

The judgment is enormous, but that finding essentially disposed of the case: counsel for President Lane accepted that if there were an “overall paper norm”, that would be unlawful. Fordham J explains why in paragraph 5.14 of his judgment: in part, because the guidance note took its lead from a pilot practice direction from the Senior President of Tribunals, and that practice direction “does not — at source — communicate an overall paper norm”. There were also considerations of common law fairness, canvassed at length in Part 6 of the judgment.

Read more: Freemovement,

EU Settlement Scheme Discriminates Against Women, Disabled and Other Groups

The government has conceded that the EU Settlement Settlement probably discriminates against various groups protected by equality legislation but denies that it is unlawful, arguing that any discriminatory effects are justifiable. Campaigners have long been pushing for publication of the official assessment of how the scheme caters for groups protected by the Equality Act 2010, such as women, disabled people and various minorities. Almost 4.3 million people have now applied for the right to stay in the UK after Brexit, exceeding the Home Office’s estimate of the eligible population, but concerns remain about underprivileged groups falling through the cracks.

The policy equality statement for the Settlement Scheme has now been published. It sets out the Home Office’s official position on whether the design and operation of the scheme comply with Equality Act requirements. The general theme is that, while there probably is at least indirect discrimination built into the process, it can be justified as a “proportionate means of achieving a legitimate aim”. Hence there are no Equality Act problems.

For example, in considering indirect discrimination based on sex, the document notes that the automated checks of government databases for evidence of residence don’t cover certain welfare payments that women are more likely to receive, such as Child Benefit. While “this could put women at a particular disadvantage”, the potential discrimination is justified because the system “reduces the overall administrative burden on applicants in general”. The Home Office also points to how it has tried to “mitigate any potential disadvantage”, in this example by accepting a wide range of other residence evidence where the automated checks don’t pick somebody up.

Read more: Freemovement,

Charles Unuane v. the United Kingdom Violation of Article 8

The applicant, Charles Unuane, is a Nigerian national who was born in 1963. The case concerned the applicant’s deportation to Nigeria, following a criminal conviction, forcing him to leave his partner and three children in the United Kingdom. The applicant came to the UK as a visitor in 1998 and was granted a right of residence the following year. In December 2000, the applicant’s Nigerian partner entered the UK, and their three children were born thereafter. In 2009 he and his partner were convicted of offences relating to the falsification of some 30 applications for leave to remain in the UK. He was ultimately sentenced to a period of five years and six months’ imprisonment, while his partner was sentenced to 18 months’ imprisonment.

In 2014 the Secretary of State for the Home Department issued a deportation order against the applicant, his partner, and two of their children, who at the time were not British citizens, as dependent family members of the applicant’s partner. The Secretary of State considered that the applicant and his partner were foreign criminals and their deportation was for the public good. The applicant appealed against the Secretary of State’s decision on the grounds that he had an established family life and private life in the UK and his deportation to Nigeria would be in breach of the European Convention on Human Rights. The applicant’s partner and the two children also appealed. Ultimately, in 2016, the domestic courts allowed the appeals of the applicant’s partner and children, concluding that separating them would be “unduly harsh” on the children. The courts further acknowledged an acute need for parental support in the case of the eldest of the children who had a heart defect and was to have forthcoming surgery in the UK which was not available in Nigeria.

The applicant’s appeal was, on the other hand, dismissed because he could not identify, as required by the Immigration Rules, “very compelling circumstances” against his deportation, over and above the parental relationship with his children. The applicant was deported in February 2018. Relying in particular on Article 8 (right to respect for private and family life) of the Convention, the applicant complained that his deportation to Nigeria had disproportionately interfered with his family and private life. Violation of Article 8

Spource: ECtHR, 24th November 2020