News & Views Monday 14th March to Sunday 20th March 2016  

Government Defeated in Lords Over Immigration Detention Time Limit

Ministers have been defeated in the Lords over limits on detention in immigration removal centres (IRC). During the Immigration Bill debate, peers voted by 187 to 170 that detention must be limited to 28 days, except when a court decides otherwise. The government had argued most of those detained either were foreign criminals, or had broken immigration rules before. Opponents insisted the limit was needed because detaining people indefinitely had a negative impact on mental health. It is the second time the government has been defeated over the bill. Lords voted a week ago to allow asylum seekers the right to work if their claims have not been processed within six months. The 28-day cap was recently recommended by a cross-party group of MPs and peers.

Read more: BBC News, 16/03/2016

US: Children Face Deportation Without Lawyers

The failure of the United States government to appoint lawyers to represent migrant children facing deportation violates their basic rights under international law, Human Rights Watch said today in an amicus (“friend-of-the-court”) brief filed in a federal appeals court. The Columbia Law School Human Rights Institute and the law firm Covington and Burling LLP served as counsel on the brief. Students in Columbia Law School’s Human Rights Clinic provided research and drafting assistance for the brief. The amicus brief was filed in the case of J.E.F.M. v Lynch, a nationwide lawsuit on behalf of thousands of children who are challenging the federal government's failure to provide them with legal representation in deportation hearings. In immigration proceedings, unlike criminal cases, there is no guaranteed right to a lawyer paid for by the government for those who cannot afford one.
Read more: Human Rights Watch, 14/03/2016

High Court Declares Suspension Of Tier 4 College Unlawful

R (TTM Services Ltd) v Secretary of State for the Home Department CO/HQ11X00152: the Claimant ran the Highgate Institute for Professional Development which provided courses to students hoping to enter the hospitality industry. TTM had a licence to issue visa letters / CAS to international students under Tier 4 of the Points Based Immigration system. In a crackdown against suspected abuse in the further and higher education sector the licence was suspended and not reinstated for 10 weeks, a delay which led to collapse of the business and losses in excess of £1,000,000. The liquidator brought a claim under the Human Rights Act 1998 for violation of TTM's property rights under Article 1 Protocol 1 of the European Convention.

Mitting J, hearing a preliminary issue as to the lawfulness of the suspension, has decided that contrary to the Home Office decision, TTM's recruitment processes of international students did not pose a serious threat to immigration control. The finding was based upon failures to provide an opportunity to make representations prior to the suspension and failure to follow statutory guidance. The judgment which means that Home Office can no longer seek to justify the decision to suspend, clears the way for a hearing to decide on the issue of financial compensation.

Robinson, R (application of) v SSHD (paragraph 353 - Waqar applied) (IJR) [2016] UKUT 133 (IAC) (16 February 2016)

1.       Notwithstanding the amendments brought about by the Immigration Act 2014 to the types of decisions appealable under s82 of the Nationality, Immigration and Asylum Act 2002, para 353 of HC395 continues to perform a gateway function in respect of access to a right of appeal. Arguments to the contrary, founded upon dicta in BA (Nigeria) v SSHD [2009] UKSC 7, are misconceived because, as explained in ZA (Nigeria) v SSHD [2010] EWCA Civ 926, in BA (Nigeria) immigration decisions (of a type that no longer give rise to a right of appeal) had been made so that there was, on that account, a right of appeal.
2.       The argument now advanced, which was not considered by the Upper Tribunal in R (Waqar) v SSHD (statutory appeals/paragraph 353) IJR [2015] 00169 (IAC), founded upon the amendment to the definition of "a human rights claim" found at s113 of the 2002 Act, provided for by the Immigration, Asylum and Nationality Act 2006 but not yet implemented, is no basis for doubting that Waqar is correctly decided.
3.       Where the respondent rejects further submissions and goes on to conclude that they do not amount to a fresh claim for the purposes of para 353 of HC 395, it is not implicit that the respondent has made a decision to refuse a human rights claim. Properly understood, the respondent has done precisely the opposite and has declined to make a decision at all. To the extent that the respondent has embarked upon an examination of the merits of the further submissions, she is not making a decision but doing no more than equipping herself to follow the para 353 process.

Published on Bailii, 11/03/2016

UKHO CIG South and Central Somalia: Fear of Al-Shabaab

1.1 Basis of claim
1.1.1 Fear of persecution or serious harm by members of Al-Shabaab because of a person’s actual or perceived opposition to the group.

1.2 Point to note
1.2.1 This guidance looks at targeted risk from Al-Shabaab as opposed to a generalised risk of indiscriminate violence under 15(c) or Article 3. For such claims see Country Information and Guidance Somalia: Security and humanitarian situation in South and Central Somalia, December 2014

Published on Refworld, 16/03/2016

Mirza (Borders, asylum and immigration)

Conditions in which a Member State may propose to send an applicant for international protection 'to a safe third country

Case C 695/15 PPU Shiraz Baig Mirza V Bevándorlási és Állampolgársági Hivatal

I – Introduction
1. The present case has arisen in the context of the mass influx into the European Union of third-country nationals wishing to cross Hungary in order to enter another Member State, in this instance Austria.

2. In the case at issue, the national concerned, a Pakistani national, entered Hungary from Serbia. He first lodged an application for international protection with the Hungarian authorities, then left without authorisation for the Czech Republic, before eventually being taken back by the Hungarian authorities. Since the application for international protection was rejected as inadmissible, the Hungarian authorities propose to send the Pakistani national to Serbia, which they consider to be a safe third country.

3. Hearing the action brought by the applicant against the measures taken by the Hungarian authorities, the referring court asks the Court about the conditions in which a Member State may propose to send an applicant for international protection 'to a safe third country' pursuant to Article 3(3) of Regulation (EU) No 604/2013 (2) ('the Dublin III Regulation') without examining the substance of his application.

4. I would point out from the outset that the option of removal does not appear to raise any fundamental issue. On the contrary, it is provided for in the legislation. It follows that a genuine applicant who does not leave the Member State in which he submitted his application runs the risk of being sent to a safe third country without his application being examined on the substance.

5. What about an applicant who leaves the Member State in which he submitted his application to travel illegally to another Member State? What procedure should be followed where the person concerned is then taken back by the first Member State? Does Article 18(2) of the Dublin III Regulation, under which 'the examination of his or her application [must] be completed', then preclude the rejection of the application for international protection as inadmissible and the applicant's immediate removal to a safe third country?

6. These are the fundamental questions that lie at the heart of the proceedings in this case. It is being dealt with under the urgent preliminary ruling procedure because the applicant for international protection is in detention in Hungary.

V – Conclusions
72. In the light of the above considerations, I propose that the Court answer the ques

tions referred for a preliminary ruling as follows:
The fact that a Member State has been determined as the State 'responsible' for examining an application for international protection, even if it has recognised its responsibility in accordance with Article 18 of the Dublin III Regulation and taken back the applicant, cannot prevent that Member State then sending the applicant to a safe third country pursuant to Article 3(3) of the Dublin III Regulation if the conditions laid down in Directive 2013/32 are met.

It is possible to send the applicant to a safe third country even though the Member State carrying out the transfer has not been informed, in the course of the take back procedure, of the national rules applicable to the sending of applicants to safe third countries or the practice applied by the competent authorities.

The second subparagraph of Article 18(2) of the Dublin III Regulation does not require Member States to continue the examination of the application for international protection at the stage where it was discontinued.

Published on Bailii, 17/03/2016

India: Freedom of Religion

I welcome this opportunity to highlight concerns over the plight of minority faiths in India. Narendra Modi, leader of the nationalist BJP, won a landslide victory in the May 2015 Indian election, mainly on ostensibly economic issues, but after his election he has given increasing support to the Hindu extremist agenda of those who helped propel him to power. He refers increasingly to restoring dignity and power to the Hindu community. His own credentials were questioned by many in India and abroad. As Chief Minister of Gujarat in 2002, he failed to stop widespread violence against the Muslim community and for some years was banned from entering the UK or the USA. Narendra Modi’s election was seen, sadly, as a green light by some Hindu extremists to make India more Hindu and to put India’s large Muslim minority, as well as Christians and Sikhs, firmly in their place. Reports from Amnesty International, Human Rights Watch, the US Commission on International Religious Freedom and other human rights organisations all tell the same story of forced conversions of Muslims and Christians, with brutal rape and killing and the destruction or seizure of property. This has been paralleled, sadly, by a more general crackdown on the right to free speech.

Read more: House of Lords, 17 Mar 2016: Column GC300

JCWI Free Right to Rent Toolkit 

A guide for Tenants and Advisors on the new Landlord Immigration Checks Scheme

Since 1 February 2016, landlords across England are re­quired to check the immigration status of adult occupiers of private rental properties. This free toolkit has been cre­ated to inform tenants and advisors about the scheme, how to evidence a right to rent, and how to recognise and safeguard against discrimination.  

Included in the Toolkit are:
·   Our full guide on the Right to Rent Scheme for those looking to rent property;

· A quick guide containing the essential information in an easy to use format; and

· A Right to Rent flowchart that helps you under­stand what documents you need and whether you have a Right to Rent

All these can be downloaded here . . . .

Changes in Immigration Rules - (Litigation Debt/Visitors Rules)

The Minister for Immigration (James Brokenshire):
My right hon. Friend the Home Secretary is today laying before the House a Statement of Changes in Immigration Rules.

A new rule is being added to the general grounds for refusal rules (with consequential changes to armed forces, family and private life, and visitor provisions), to provide a new discretionary power to refuse applications on the basis of litigation debt. Each year, the Home Office is awarded considerable litigation costs by the immigration and asylum chamber of the tribunal and the courts. A number of applicants do not pay these costs. At present such litigation debts are not taken into account when considering applications to be granted entry clearance, leave to enter or leave to remain. The new rule provides a power to refuse such applications if the applicant has not paid a litigation debt, in order to encourage payment of such debts. It is right that people who are ordered to pay costs to the Home Office should do so.

The threshold is also being reduced from £1,000 to £500 at which foreign nationals who incur NHS debt can be refused entry clearance or further leave to enter or remain in the UK. These changes are aimed at preventing the abuse of our valuable public services.

There are a number of changes to visitor rules, which will:

allow Kuwaiti citizens to benefit from the electronic visa waiver and for holders of Indonesian diplomatic passports to travel visa free to the UK as a visitor

update the permit free festival list (which allows visitors to perform at listed festivals and receive payment) for 2016-17

remove the mandatory entry clearance refusal for holders of 'non-national' documents, which do not establish a nationality, owing to the holder’s status, but which the UK is otherwise prepared to accept as they are recognised as valid for travel in all other respects

simplify the journey for those non-EU citizens who usually do not require a visa for the UK, but whose passport has been lost or stolen and are therefore returning home on an emergency travel document.

Updates are made to the definition of ‘public funds', to include payments made by local authorities and devolved Administrations in Scotland and Northern Ireland which replace the discretionary social fund.

The changes insert appendix SN into the immigration rules. This specifies how notices that applications are invalid or void and the outcomes of administrative review applications will be served. The new rules set out unified provisions for service of the notice types that it covers.

The statement also makes changes to the immigration rules on skilled and highly skilled work routes, students, family and private life, and administrative review, and the changes to the rules concerning overseas domestic workers set out in my statement of 7 March 2016.

11 Mar 2016 : Column 32WS

UKHO CIG Turkey: Human Rights Defenders

1. Basis of claim
1.1.1 Fear of persecution or serious harm by the state due to a person’s actual or perceived political opinion arising from their activities as a human rights defender (HRD) or member of a human rights organisation (HRO).

1.1.2 For the purposes of this guidance, an HRD is an individual who acts, or is perceived to act, to promote or protect human rights, and a HRO is an organisation which acts in that way.

Published on Refworld, 11/03/2016

UKHO CIG Turkey: Journalists

1. Basis of claim
1.1.1 Fear of persecution or serious harm by the state due to the person’s actual or perceived political opinion in their role as a journalist.

Published on Refworld, 11/03/2016

UKHO CIG Malawi: Sexual Orientation and Gender Identity

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.

1.2.1 This instruction refers to lesbian, gay, bisexual and transgender (LGBT) persons co lectively, 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 Malawi is listed as a designated state in respect of men only.

Published on Refworld, 17/03/2016

UKHO CIG Ukraine: Crimea, Donetsk & Luhansk

UKHO CIG Ukraine: Women fearing gender based violence

UKHO CIG Ukraine: Military service

UKHO CIG Ukraine: Fear of organised criminal gangs

UKHO CIG Ukraine: Victims of trafficking

Last updated 18 March, 2016