News & Views Monday11th January to Sunday 17th January 2016

Secretary of State Must Arrange Return of Respondent to UK

Gheorghiu (reg 24AA EEA Regs - relevant factors) [2016] UKUT 24 (IAC) (24 November 2015)

[Obiter: When considering whether or not to suspend certification of EEA appeals pursuant to regulation 24AA of the Immigration (European Economic Area) Regulations 2006, the decision-maker should take into account inter alia:(i) the status of the EEA national; (ii) the impact of removal on family members; (iii) evidence of continuing risk to the public; and (iv) the role oral evidence may play.]

1. This is the Secretary of State's appeal from a decision of FtT Judge Trevaskis promulgated on 27 April 2015. He allowed the respondent's appeal from a decision of the Secretary of State to deport him pursuant to the Immigration (EEA) Regulations 2006.
20. We are conscious that Mr Gheorghiu was removed from the United Kingdom and his wife and family in March 2015, pursuant to the Secretary of State's certification. We note that this decision may have been influenced by the fact that he failed to respond to the pre- decision inquiry into his personal circumstances. We further note that his legal team failed to apply to a judge of the First-tier Tribunal to suspend the certification pursuant to regulation 24AA (4) of the Regulations.

Notice of Decision
 The Secretary of State's appeal is dismissed.

The decision of the FtT judge allowing the respondent's appeal from the decision to deport stands.

The Secretary of state is directed to arrange for the return of the respondent to the United Kingdom within 28 days of the promulgation of this decision

Published on Bailii, 15/01/2016


SSHD v Vassallo [2016] EWCA Civ 1352 (14 January 2016)

1. This is an appeal by the Secretary of State for the Home Department against a determination of the Upper Tribunal (Immigration and Asylum Chamber) in a deportation case. The Upper Tribunal's determination is reported as Vassallo (Qualifying Residence; pre-UK Accession) [2014] UKUT 00313 (IAC). The hearing of the appeal was listed in this court under the title BV (Italy) v Secretary of State for the Home Department but there is no reason for maintaining the anonymity of Mr Vassallo, the respondent to the appeal.

68. Whilst I would find in the Secretary of State's favour on the central issue in the appeal, holding that the tribunals were wrong to conclude that Mr Vassallo acquired a right of permanent residence in the United Kingdom under regulation 15 of the EEA Regulations, I am satisfied that the error was not material to the outcome and that there is therefore no basis for this court to set aside the determination of the Upper Tribunal. I would dismiss the appeal.

Published on Bailii, 14/01/2016

UK Surveillance Law Threatens Freedom of Expression

United Nations human rights experts have called for a comprehensive review of the United Kingdom’s draft Investigatory Powers bill, warning that if adopted in its present form it could threaten the rights to freedoms of expression and association both inside and outside the country.  The legislation, currently being examined by the Joint Parliamentary Committee, aims to unify the various regulations governing how UK surveillance agencies, police and other authorities can monitor suspects.
Special Rapporteur on freedom of expression David Kaye, Special Rapporteur on freedom of peaceful assembly and of association Maina Kiai, and Special Rapporteur on human rights defenders Michel Forst expressed serious concerns about several provisions of the draft Bill. They cited excessively broad definitions and disproportionate procedures to authorize surveillance, including mass surveillance, and data retention without adequate independent oversight and transparency.

“The lack of transparency could prevent individuals from ever knowing they are subject to such surveillance,” the experts noted in a six-page submission to the Parliamentary Committee. “This will ultimately stifle fundamental freedoms and exert a deterrent effect on the legitimate exercise of these rights and the work of civil society and human rights defenders.” Stressing the potential for human rights violations, they called for a comprehensive review of the draft bill “to ensure its compliance with international human rights law and standards.” UN rapporteurs, serving in an independent capacity, are appointed by the Geneva-based UN Human Rights Council, to whom they report back.
Source: UN Human Rights Council, 12/01/2016

CCRC Helps Asylum Seekers Quash Convictions for Illegal Entry Into UK

An official Government body is helping asylum seekers quash their convictions for illegal entry to Britain in a move MPs fear could “undermine deterrence” and lead to thousands more arrivals. The Criminal Cases Review Commission (CCRC) is running an unprecedented publicity campaign encouraging hundreds of migrants to challenge criminal convictions related to their entry, such as fraud or using false passports. The commission has already helped more than 30 asylum-seekers to overturn their convictions – something which has allowed many of them to receive refugee status and stay in the UK. It is considering a further 60 cases.
As well as advertising for asylum-seeker cases, the commission has waived its normal rules which insist that people seeking its help must first have tried to appeal through the courts in the normal way.  It has instead fast-tracked dozens of asylum-seeker cases, making up a large proportion of its workload. Despite massive demand from British citizens who say they are victims of injustice, almost a third of the people who the CCRC helped overturn their convictions last year were asylum-seekers.
Read more: Telegraph, 09/01/2016

UK HO CIG: The Gambia: Sexual Orientation and Gender Identity

Topics: Effective protection | Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) | Lesbian, gay, bisexual, transgender and intersex (LGBTI) | Persecution on the basis of sexual orientation or gender identity

1. Basis of claim

1.1.1 Fear of persecution or serious harm by the state and/or non-state actors because of the person's actual or perceived sexual orientation and/or gender identity.

1.2 Other points to note

1.2.1 This instruction refers to lesbian, gay, bisexual and transgender and Intersex (LGBT) persons collectively, although the experiences of members of each group may differ.

1.2.2 Decision makers should also refer to the Asylum Instructions on Sexual Identity Issues in the Asylum Claim; Gender Identity Issues in Asylum Claims; and Gender Recognition in Asylum Claims.

1.2.3 Where a claim by a male applicant falls to be refused, it must be considered for certification under section 94 of the Nationality, Immigration and Asylum Act 2002 as The Gambia is listed as a designated state in respect of men only.

Published on Refworld, 08/01/2016

Dasgupta (error of law - proportionality - correct approach) [2016] UKUT 28 (IAC)

[Obiter: (i) A tribunal's failure to make clear findings about family life is not per se erroneous in law where its existence has not been contested in the Secretary of State's decision and has not been challenged at the appeal hearing and the tribunal's decision is not otherwise unsustainable in law.
(ii)       The question of whether there is family life in a child/grandchild context requires a finding of something over and above normal emotional ties and will invariably be intensely fact sensitive.

(iii)       In error of law appeals, the Upper Tribunal should apply the principles in Edwards v Bairstow [1956] AC 14 .

(iv)       In appeals involving the proportionality of an interference with a Convention right, the ultimate question for the Upper Tribunal is whether the interference is proportionate, per Huang v Secretary of State for the Home Department [2007] 2 AC 167.

Decision And Reasons

1. The Appellant is a national of India, aged 85 years. The origins of this appeal to the Upper Tribunal are traceable to a decision made by the Entry Clearance Officer of New Delhi (the " ECO"), dated 27 June 2013, whereby the Appellant's application for clearance to enter the United Kingdom as an adult dependant relative under Appendix FM of the Immigration Rules was refused. The Appellant's ensuing appeal to the First-tier Tribunal (the " FtT") was, by its determination promulgated on 06 August 2014, allowed. The appeal succeeded under Article 8 ECHR. The appeal was dismissed under the Immigration Rules. We shall elaborate on this infra.

 2. The procedural developments thereafter may be described as somewhat atypical. First, the ECO, who is represented by the Secretary of State for the Home Department ("the Secretary of State") sought, and was granted, permission to appeal. The permission Judge, in making this decision, highlighted:" .... the weight which the Judge gives to the rights of the sponsor's children ....", continuing:

"The Judge [arguably] erred in his application of the Rules and the jurisprudence relating to the Article 8 rights of the Appellant ....."

 At the stage when this order was made the Appellant had an application, undetermined, seeking permission to appeal on the ground that the FtT should also have allowed the appeal under the Rules and decided that the adult dependant relative rule is, at least in part, not in accordance with the law and/or is incompatible with Article 8 ECHR. Next, having learned that the ECO had been granted permission to appeal, the Appellant's representatives lodged a "cross-appeal" on the same grounds. This elicited a grant of permission to appeal to the Appellant. By way of sketching the contextual framework of these combined appeals, it is appropriate to set out part of the decision of the second permission Judge:  

" It seems to me that the Appellant's submissions, in suggesting that the Upper Tribunal could deal simultaneously with the case as a judicial review (deploying a High Court Judge), has [sic] not only technical obstacles (no such application having been made) but overlooks that a challenge to the vires of the Rules is excluded by the Lord Chief Justice's Practice Direction governing UT judicial reviews. However, there is some authority for the proposition that in exercising its statutory 'in accordance with the law' jurisdiction .... the Upper Tribunal in deciding appeals cannot exclude issues going to vires."

 The scene is thus set.

 27.   This disposes of the Secretary of State's appeal. As appears from our recent case management directions, we have decided to sever the Secretary of State's appeal from the Appellant's cross-appeal, for the reasons therein explained.

 28.  We dismiss the appeal of the Secretary of State and affirm the decision of the FtT.
Published on Bailii, 15/01/2016

UK Must Drastically Reduce Use of Detention

An independent review into the welfare of immigration detainees commissioned by the home secretary has called for ministers to reduce “boldly and without delay” the 30,000 people detained each year. The report by Stephen Shaw, the former prisons and probation ombudsman, calls for a complete ban on the detention of pregnant women in immigration centres such as Yarl’s Wood. He says there should also be a “presumption against detention” of victims of rape and sexual violence, people with learning difficulties, and those with post-traumatic stress disorder.

The six-month review was commissioned by the home secretary, Theresa May, after years of criticism about the treatment of immigration detainees including incidents of deaths, self-harm and sexual abuse in Britain’s 10 immigration removal centres. May tried to exclude any consideration of introducing a statutory time limit on the use of immigration detention, but Shaw makes clear his belief that the numbers should be reduced “both for reasons of welfare and to deliver better use of public money”.
Read more: Alan Travis, Guardian, 14/01/2016

Immigration Detention: Vulnerable Persons (Government Response to Shaw Report

First, the Government accept Mr Shaw’s recommendations to adopt a wider definition of those at risk, including victims of sexual violence, individuals with mental health issues, pregnant women, those with learning difficulties, post-traumatic stress disorder and elderly people, and to recognise the dynamic nature of vulnerabilities. It will introduce a new “adult at risk” concept into decision-making on immigration detention with a clear presumption that people who are at risk should not be detained, building on the existing legal framework. This will strengthen the approach to those whose care and support needs make it particularly likely that they would suffer disproportionate detriment from being detained, and will therefore be considered generally unsuitable for immigration detention unless there is compelling evidence that other factors which relate to immigration abuse and the integrity of the immigration system, such as matters of criminality, compliance history and the imminence of removal, are of such significance as to outweigh the vulnerability factors. Each case will be considered on its individual facts, supported by a new vulnerable persons team. We will also strengthen our processes for dealing with those cases of torture, health issues and self-harm threats that are first notified after the point of detention, including bespoke training to GPs on reporting concerns about the welfare of individuals in detention and how to identify potential victims of torture.
House of Commons 14 Jan 2016 : Column 26WS

Record Number of Asylum Seekers in UK Destitute

A record number of asylum seekers in Britain are being left destitute, and planned legislation could plunge thousands more into poverty, the British Red Cross said on Wednesday. The charity said it had supported more than 9,000 refugees and asylum seekers who were destitute last year, compared with 7,700 in 2014. The youngest was less than one year old and the oldest was 81.
The Red Cross said an Immigration Bill, being debated in the House of Lords - Britain's upper parliamentary chamber - was expected to reduce asylum support further. Some 29,000 people applied for asylum in Britain between September 2014 and October 2015, 19 percent up from the previous year. Nearly 44 percent of destitute asylum seekers supported by the Red Cross were from Eritrea, Sudan, Iran and Syria, which are among the biggest sources of refugees.
Read more: Thomson Reuters Foundation – 13/01/2016

Asylum Research Consultancy (ARC) COI Update Volume 116
This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 28 December 2015 and 11 January 2016. Volume 116

Policing with Accountability or Policing with Impunity?

Media stigmatisation of poor multicultural neighbourhoods of Europe as strongholds of Islamist terrorism and organised crime is lending legitimacy to a more coercive, more militarised style of policing. The Home Office is currently reviewing legal protection for police officers who shoot to kill as well as considering whether to transfer the lead role in fighting terrorism from Scotland Yard to the National Crime Agency. And a review of the rules on the use of lethal force is underway in France, where, in a separate move, President Hollande has asked parliament to approve changes to the French constitution, to deprive French-born dual nationals convicted of terrorist offences of their citizenship and to allow the indefinite renewal of the state of emergency.
Read more: IRR News, 14/01/2016

UKHO CIG: Ukraine: Prison conditions

Topics Criminal justice | Death penalty | Freedom from torture, inhuman and degrading treatment | Prison or detention conditions | Return conditions

1. Introduction
1.1 Basis of claim
1.1.1 Fear of being imprisoned on return to Ukraine and that prison conditions are so poor as to amount to torture or inhuman or degrading treatment or punishment.
1.2 Other points to note
1.2.1 Unless otherwise stated, the country information and guidance in this document refers to the position with regard to prisons in the government controlled areas of Ukraine. Decision-makers should seek country information and guidance on prison conditions in other areas of Ukraine on a case-by-case basis in the normal way.
1.2.2 Where a claim falls to be refused, it must be considered for certification under section 94 of the Nationality, Immigration and Asylum Act 2002 as Ukraine is listed as a designated state.

Published on Refworld, 13/01/2016

UKHO CIG: Pakistan: Interfaith Marriage

Topics: Ahmadis | Christian | Hindu | Muslim | Sikh | Social group discrimination | Sunni

1.1 Basis of Claim

1.1.1 Fear of persecution or serious harm by the state and/or non-state actors because the person is in an interfaith marriage.

1.1.2 For the purposes of this guidance, interfaith marriage includes marriages between: a Sunni Muslim and a Christian, Hindu, Sikh, or Shia Muslim; and an Ahmadi and non-Ahmadi. In addition the guidance also covers interethnic marriages.

1.2 Other Points to Note

1.2.1 In addition to this guidance decision makers should also refer to the Asylum Instructions on Gender issues in the asylum claim and on Assessing Credibility and Refugee Status.

Published on Refworld, 08/01/2016

Genner v. Austria (application no. 55495/08)
The applicant, Michael Genner, is an Austrian national who was born in 1948 and lives in Vienna. The case concerned criminal proceedings against him for defamation. Mr Genner, who at the time was working for an association which offers support to asylum seekers and refugees, published a statement on the association’s website on 1 January 2007 about the Minister for Interior Affairs, who had unexpectedly died on the previous day. It commented: “The good news for the New Year: L.P., Minister for torture and deportation is dead.” After referring to several individual stories of asylum seekers, the text stated, in particular, that the Minister had been “a desk criminal just like many others there have been in the atrocious history of this country”, that she had been “the compliant instrument of a bureaucracy contaminated with racism” and that “no decent human is shedding tears over her death”.

The late Minister’s widower filed a private prosecution for defamation against Mr Genner and the association. In September 2007 the Vienna Regional Court convicted Mr Genner of defamation and sentenced him to a fine of 1,200 euros (EUR). It found in particular that a recently enacted amendment to the legislation concerning the status of foreigners and asylum seekers could not justify positioning the Minister in a national-socialist and racist context. The court concluded that the accusations, on the day after her death, overstepped the limits of acceptable criticism, although those limits were widely drawn in the context of a refugee association criticising a politician. The conviction was upheld on appeal, and in October 2009 the Supreme Court dismissed Mr Genner’s request to have the proceedings re-opened. Mr Genner complained that the Austrian courts’ judgments had been in breach of his rights under Article 10 (freedom of expression) of the European Convention on Human Rights. No violation of Article 10

RK, R (on the application of) v SSHD  (s.117B(6); "Parental Relationship" (IJR) [2016] UKUT 31 (IAC) (22 December 2015)

[Obiter: 1. It is not necessary for an individual to have "parental responsibility" in law for there to exist a parental relationship.
2.       Whether a person who is not a biological parent is in a "parental relationship" with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has "stepped into the shoes" of a parent.

3.       Applying that approach, apart from the situation of split families where relationships between parents have broken down and an actual or de facto step-parent exists, it will be unusual, but not impossible, for more than 2 individuals to have a "parental relationship" with a child. However, the relationships between a child and professional or voluntary carers or family friends are not "parental relationships".]

2.   The applicant is a citizen of India who was born on 26 June 1957. In these proceedings she challenges three decisions of the respondent dated 14 March 2014, 12 May 2015 and 7 October 2015 by which the respondent refused to grant the applicant leave to remain outside the Rules under Art 8 of the European Convention on Human Rights. Permission was granted following an oral hearing by His Honour Judge Purle QC on 18 March 2015.

3.     As will become clear shortly, the basis of the applicant's challenge is that her removal from the UK would breach Art 8 because she is, in effect, in a "parental relationship" with her three grandchildren who live in the UK with her son and daughter-in-law.

55.  For the above reasons, the claim for judicial review is dismissed.

Published on Bailii, 15/01/2016 

UKHO CIG: Iran: Illegal Exit

Topics: Entry / Exit | Internal flight alternative (IFA) / Internal relocation alternative (IRA) / Internal protection alternative (IPA) | Returnees
1.1 Basis of Claim
1.1.1 Fear of persecution or serious harm by the Iranian authorities because the person left Iran illegally.
2. Consideration of Issues
2.1 Is the person’s account a credible one?
2.1.1 For further information on assessing credibility, see sections 4 and 5 of
the Asylum Instruction on Assessing Credibility and Refugee Status.
2.1.2 Decision makers must also check if there has been a previous application for a UK visa or another form of leave. Asylum applications matched to visas should be investigated prior to the asylum interview (see the Asylum Instruction on Visa Matches, Asylum Claims from UK Visa Applicants).
2.1.3 Decision makers should also consider the need to conduct language analysis testing (see the Asylum Instruction on Language Analysis).

Last updated 15 January, 2016