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                                        News & Views - Monday 23rd Decvember to Sunday 29th December 2013

UK Immigration Bill may Create 'Climate Of Ethnic Profiling'

he UN refugee agency has condemned David Cameron's proposed immigration laws over fears they could stigmatise foreigners, deny housing to people in need and create a "climate of ethnic profiling".

In a highly critical document, the office of the United Nations high commissioner for refugees, António Guterres, raised concerns that the immigration bill will damage communities and lead to the marginalisation of refugees and asylum-seekers.

It comes after Tories reacted angrily to the UN's special investigator on housing, Raquel Rolnik, who warned earlier this year that the bedroom tax was causing "shocking" hardship in parts of the UK.

Cameron has proposed the immigration bill in order to crack down on illegal immigrants, restricting access to bank accounts and private housing, as well as forcing temporary migrants to pay for public services such as the NHS.

However, the commissioner is worried that legal refugees and asylum-seekers will be caught up in the new restrictions, as landlords, GPs and banks will find it difficult to interpret their immigration status. The commissioner said these protected groups would suffer discrimination if the legislation went ahead.
Read more; The Guardian, <> Thursday 26 December 2013

More Legal Aid Woe Coming Your Way

ILPA Immigration Update

The Government proposes to further restrict access to legal aid in the New Year, despite the full effects of the changes to the legal aid regime brought into force in April 2013 not yet being felt. As legal aid lawyers struggle to operate within the strictures of the new scheme, the Government continues to press forwards with the erosion of access to justice for those who can least afford it.

Residence test
It is proposed that civil legal aid would for the first time be pegged to an immigration status requirement: lawful residence in the UK. This has far-reaching consequences, as it would apply across all areas of law, not just immigration. Legal aid would be refused outright unless an individual demonstrate that they meet a two-pronged residence test:
(i) Lawful residence in the UK as at the date of application for civil legal aid; and
(ii) Lawful residence in the UK for a continuous period of 12 months at some time prior to this date.

Although this requirement would apply to everyone, across all areas of civil law (e.g. family and housing law), migrants are likely to be affected adversely the most.

Judicial Review
The residence test outlined above would act as a barrier to judicial review, the primary means for individuals to seek redress for unlawful state action. In addition, the Government intends to remove legal aid from work done by lawyers to prepare a judicial review case at the early stages of proceedings (prior to getting 'permission' from the Court to bring the judicial review). The work would instead be "at risk", meaning the lawyer would only be paid if the case is ultimately successful in getting permission. What this means in practice is that individuals eligible for legal aid would be less likely to find a lawyer willing to take on their case, given the financial risks involved.

It is proposed to deny legal assistance to everyone in the prison estate seeking challenge their conditions or treatment. This includes persons detained in a prison under immigration powers (i.e. not serving a criminal sentence). This is of particular concern, given the fact that the UK has frequently been found in breach of the European Convention on Human Rights for its treatment of foreign nationals in detention including, four times in the last two years for breaches of Article 3, the prohibition on torture, inhuman or degrading treatment.

Borderline cases
Currently, if a case is 'borderline', in that it has 50:50 prospects of success, it can still be granted legal aid, if it is of "overwhelming importance" to the client. This is defined to include cases concerning the life, liberty or physical safety of the individual, or where they are at risk of becoming homeless. The Government now proposes to remove this borderline category altogether. This would put individuals at risk in cases where the merits are not wholly clear at the outset, but where the case is of fundamental importance.

Legal aid is designed to ensure that the poorest members of our society are able to enforce their rights. The proposed legal aid reforms would prevent an entire subset of individuals from access to justice based on nothing more than length of stay in the UK, no matter how serious the infringement of their rights. The Legal Aid proposals, together with the intended new restrictions on Judicial Review, would combine to insulate public decision-making from effective legal scrutiny and undermine the rule of law.

No-one will feel the effects of these changes more than migrants with precarious status in the UK. Already by definition a group who are open to exploitation, in future these individuals face having their rights trampled on, without any means of redress.

Source: ILPA Information Service Update 56:

Commentary on UKBA December 2013 Nigeria OGN
This commentary identifies what the 'Still Human Still Here' coalition considers to be the main inconsistencies and omissions between the currently available country of origin information (COI) and case law on Nigeria and the conclusions reached in the December 2013 Nigeria Operational Guidance Note (OGN) issued by the UK Home Office. Where we believe inconsistencies have been identified, the relevant section of the OGN is highlighted in blue.
Published on Refworld, <> 24/12/013

-  If Your Immigration Status Is Insecure!

1) Stay out of cars / Stay Sober/ Avoid noisy celebrations, this Festive Season?

2) Solicitors/NGOs/advocacy groups reduced services for next two weeks!

The government have launched its annual don't drink/ don't drive campaign.

From now through to the end of the first week of 2014 there will be extra police checks on cars.

1) If police stop a car they are more than likely (though they are supposed not to) to check the details of all the occupants of the car not just the driver. Police will run the names through their national database; the database contains details of persons that the UK Border Agency (UKBA) has an interest in.

Christmas, New years eve festivities, don't over do, so as to attract the attention of the police.

If a name comes up as of being of interest to UKBA, that person may well be detained and taken to the nearest police station. UKBA will be informed that the person has been detained and UKBA will them make a decision as to whether to instruct the police to release the person back into the community or hold the person pending transfer to a Immigration Removal Centre.

2) Warning solicitors and advocacy groups will be very thin on the ground over the festive season; many will shut up shop on Friday 20th December through to Thursday 2nd January 2013.

If you do have a solicitor, make sure you have their emergency number, also emergency number for your MP.

If you do not have Leave to Remain, make sure that you/ a close friend/ other family member have copies of all your paper work held by your solicitor/case worker, in particular your,

1) ICD.2599 Immigration Factual Summary

2) a copy of the Home Office 'Letter of Refusal' also called the 'determination', this is the document refusing leave to remain in the UK and ordering removal/deportation.

MK (Duty to Give Reasons) Pakistan v. SSHD

(1) It is axiomatic that a determination discloses clearly the reasons for a tribunal's decision.

(2) If a tribunal finds oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it is necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight is unlikely to satisfy the requirement to give reasons.

[18] We allow the appeal and set aside the decision of First-tier Tribunal. Following careful deliberation and having considered the parties' respective submissions, we decline to re-make the decision, since we have misgivings about the course and conduct of the hearing at first instance and consider that the Appellant should not be denied his right to a fair and proper hearing at both first instance and on appeal. Accordingly, we remit the case to a differently constituted First-tier Tribunal. We do not consider any specific procedural directions under section 12(3)(b) of Tribunals, Courts and Enforcement Act 2007 necessary.

Published on Refworld, < >20/12/13

SD (military service - sexual identity) Turkey CG v. SSHD

13. In summary therefore, we are satisfied that the First-tier Tribunal erred in law. None of the findings of the FtT stands except in relation the appellant's outstanding liability to military service in Turkey and his negative HIV status. We set aside the decision which will be remade at a further hearing.

(1) All Turkish males are required to undergo military service but exemption can be granted on the grounds of physical or mental disability which includes "sexual identity disorder".

(2) Homosexuality is regarded by the Turkish army as a sexual identity disorder but the perception of homosexuality in Turkey is not reduced to a person's sexual preference but is informed by an assessment of his whole personality including his outward appearance and behaviour. It is associated with the passive role which is seen as unmanly whereas taking the active role does not attract the same disapproval and is not considered to undermine the essence of manliness.

(3) The exemption process for determining whether a recruit is entitled to exemption generally includes intrusive requirements which do not properly respect the human dignity of someone whose sexual identity would qualify him for exemption such that it can properly be categorised as degrading and involving a real risk of a breach of article 3.

(4) If during his military service a recruit (whether he has not sought exemption or has been refused) is discovered or is perceived to be homosexual as understood in Turkey, there is a reasonable degree of likelihood of ill-treatment of sufficient severity to amount to persecution on the basis of his sexual identity and there is no sufficiency of protection. The risk of such discovery or perception arising during his service will require a fact sensitive analysis of an individual's particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.

(5) Any such risk likely to arise during service is not negated by the fact that there is an exemption process as that process itself carries a real risk of a breach of article 3.

(6) MS (Risk- Homosexual) Turkey CG [2002] UKIAT is no longer to be regarded as providing country guidance.
Published on Refworld, <> 20/12/13

Last updated 28 December, 2013