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

Migration Facts in a Post-Truth World

Post-Brexit and post-Donald Trump’s election, it’s hard to argue with the notion that we’re now living in a “post-truth” era in which objective facts often hold less weight than emotional appeals and “fake news” when it comes to shaping public opinion. Nowhere have post-truths gained more currency than in debates around immigration. Here are a few of the most influential post-truths about migration and refugees, and the facts that contradict them:

Refugees are a security threat: One of the most potent post-truths is the idea that terrorists are posing as refugees to gain entry to Europe and the United States. Right-wing politicians and media outlets have successfully made the association between a string of terror attacks over the past year and the unprecedented and chaotic arrival of more than a million asylum seekers to European shores in 2015. Most of those asylum seekers came from countries such as Syria, Iraq, and Afghanistan that are associated in the public’s mind with extremist groups like so-called Islamic State and al-Qaeda; never mind the fact that many were themselves fleeing those groups. A July study by the Pew Research Centre found that in eight out of 10 European nations surveyed, half or more people believed that incoming refugees increased the likelihood of terrorism in their country.

Read more: Kristy Siegfried, IRIN,

Unelected Judges Decline to Prevent Deportation of Foreign Criminal

Amid a level of scrutiny unprecedented in the Supreme Court’s seven-year history, that is a headline unlikely to make it into tomorrow’s tabloids. Nevertheless, as Lord Wilson explains in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60: “Today is an important day in the life of our court. For it is the first occasion upon which either we or our predecessors in the House of Lords have had occasion to address the interface between the power of the Secretary of State to deport a foreign criminal and the latter’s ability to resist deportation by reference to his right for respect for his family life under article 8 of the ECHR.

Read more: Jim Duffy, UK Human Rights Blog,

Migrant Teenagers Without Family in UK Barred Except Syrians & Sudanese

Unaccompanied teenagers from Afghanistan, Yemen and Eritrea who had reached the Calais refugee camp will be barred from entering the UK according to Home Office guidelines. In a decision that was condemned by refugee charities and campaigners, the move will limit the intake of teenagers who do not have family in the UK to those from Syria and Sudan except in exceptional circumstances. The Home Office’s guidance said it would take children 12 or under of all nationalities, those deemed at high risk of sexual exploitation, and those who “are aged 15 or under and are of Sudanese or Syrian nationality” because people from those countries are already granted asylum in the UK in 75% of cases. Lady Sheehan, the Liberal Democrat peer, said the new rules, details of which emerged on Tuesday night, were “unacceptable”. Sheehan said they would come as a “horrible shock” to refugees from other countries who had been led to believe they might be able to come to Britain. “It is quite arbitrary. We had no idea they were going to apply this sort of criteria,” she said.

Read more: Lisa O'Carroll, Guardian,

Oldham Pensioner Wins Fight Against Deportation to Pakistan

The family of a pensioner with dementia who have fought for almost a year against plans to deport him have won their case. A petition to save Hakeem Muhammad Haleem, 77, from being sent thousands of miles away to Pakistan gained more than 22,900 signatures after his story was shared around the world. The Home Office has ruled he can now stay in Oldham with his family on human rights grounds. His son, Muhammad Nadeem, 46, said: “We are so relieved, and we don’t think we could have done it without the help of our supporters. It has been such a long fight for us but finally we have good news.

“Now he can stay until 2019 and we believe this has saved his life. Our only wish was always to be able to care for my father and keep the family together. My wife and I would like to thank the thousands of people who have signed the petition to halt the proposed deportation.” The family of Haleem, who is partially blind and deaf and also suffers from a heart condition as well as vascular dementia and needs 24-hour care, feared he would not survive the journey to Pakistan.  In April, the Home Office told Haleem his father would not be granted a visa and must return to his homeland. Officials issued a deportation order and instructed he report to a detention centre.

Read more: Nazia Parveen, Guardian,

Hundreds Of Trafficked Children Missing From UK Care Homes

Trafficked children and unaccompanied child asylum seekers are going missing from UK care homes at "an alarmingly high rate", two charities have said. Almost 600 children disappeared last year, with more than 200 still missing, ECPAT UK and Missing People said. The charities called on the UK government and local authorities to reform the child protection system. The Department for Education said it had commissioned "specialist training" for those caring for the children. The two charities collected the latest annual figures provided to them by more than 200 local authorities across the UK. The study, which will be presented in parliament later, found 167 children - more than a quarter of all trafficked children in the UK care system - went missing at least once in the 12 months to September 2015.

Read more BBC News,

Tightening the Language Skills Net

The government recently announced a change to the language rules for migrants. The change introduces a higher language requirement for partners and parents of a non-EEA national applying for further leave to remain on the five-year family route to settlement. In addition, the new rule requires that the applicant demonstrates English language speaking and listening skills at the A2 level of the Common European Framework of References for Languages after 2.5 years in the UK. The rule will apply from 1st May 2017. The change is yet another in a series of rule changes that have come about in the last few years, gradually tightening the language requirements for migrants in the UK.

As it currently stands, those applying for entry clearance or leave to remain as a partner of a British citizen or a person settled in the UK are required to demonstrate English language skills at the most basic level, A1. From 1st May 2017 all applicants for settlement in the UK will be required to pass the English speaking and listening test at the more demanding B1 level at the end of their five-year probationary period. Furthermore, they will have to demonstrate the intermediate A2 level of skill at the halfway point of the probationary period, which intends to support progression towards the B1 level required at the settlement stage. When the A1 entry requirement was introduced in November 2010 the number of refused applications surged to 781 in 2011 compared to only 15 the year before. A similar increase may be expected after 1st May 2017 when applicants will be asked to prove their knowledge at the A2 level, although existence of certain exemptions should provide relief in some cases.

Posted by: Gherson Immigration,

Asylum Research Consultancy (ARC) COI Update Volume 136

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 1 November and 14 November 2016. 

Download the full report:

Migrants in Limbo in Europe Have the Right to Live in Dignity

In some countries, they call them “invisible persons”, in others – “ghosts”. Throughout Europe there are many migrants, primarily rejected asylum seekers, who live in a state of protracted legal and social limbo without any long-term prospects. The authorities refuse to regularize them or to grant them any kind of legal status, but often, they cannot go back to their countries of origin for various reasons, most often, fear of persecution. These desperate persons tend to live in substandard conditions, completely excluded from society, lacking residence permits and the means to meet basic needs such as shelter, food, health or education. In essence, they are deprived of any opportunity to live in dignity.

Read more: Nils Muižnieks, Commissioner for Human Rights,

Refugee Status Granted After 20 Years of Legal Wrangling

In the case of Al-Sirri v SSHD the Upper Tribunal told an Appellant, who remarkably first sought asylum in the UK more than 20 years ago, that he would finally be granted refugee status. The Appellant was alleged to have been involved in an assassination of an Afghan man by a terrorist group and the Home Office excluded him from the Refugee Convention under Article 1F(c). Article 1F(c) states that: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (c) He has been guilty of acts contrary to the purposes and principles of the United Nations The meaning of 'serious reasons' and the scope of 1F(c) had been decided by the Supreme Court in a case that the Appellant had been party to. The Supreme Court had enunciated three guiding principles:

Read more: Gherson Immigration,

UNHCR Position on Returns to Iraq as of 14th November 2016

47. Under the present circumstances, UNHCR urges States to refrain from forcibly returning any Iraqis who originate from areas of Iraq that are affected by military action, remain fragile and insecure after having been retaken from ISIS, or remain under control of ISIS. Such persons, including persons whose claims for international protection have been rejected, should not be returned either to their home areas, or to other parts of the country. Many Iraqis from these areas are likely to meet the criteria of the 1951 Convention for refugee status.179 When 1951 Refugee Convention criteria are found not to apply, broader refugee criteria as contained in relevant regional instruments180 or complementary forms of protection181 are likely to apply. Depending on the profile of the individual case, exclusion considerations may need to be examined.

48. Where decision-makers consider the availability of an internal flight or relocation alternative, the burden is on the decision-maker to identify a particular area of relocation and to show that in respect of this location the requirements for the relevance and reasonableness of the proposed relocation alternative are met.183 In the current circumstances, with large-scale internal displacement, a serious humanitarian crisis, mounting intercommunal tensions, access/residency restrictions in virtually all parts of the country and increasing pressure exercised on IDPs to prematurely return to their areas of origin following the retaking of these areas from ISIS, UNHCR does not consider it appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight or relocation alternative. An internal flight or relocation alternative would only be available in the exceptional circumstances where an individual can legally access and remain in the proposed area of relocation,184 would not be exposed to a new risk of serious harm there,and has close family links in the proposed area, with the family willing and able to support the individual. In light of the difficult humanitarian conditions in many parts of the country, especially in areas hosting large numbers of IDPs, family members who are themselves in a situation of internal displacement would generally not be considered as being able to provide such support.

Read the full document,

Appeal Allowed - BF (Eritrea), R (On the Application of) v SSHD [2016]

Lord Justice Burnett:

1. This is an appeal against the order of Upper Tribunal Judge Lane dated 6 August 2014 by which he refused the appellant permission to apply for judicial review. At that hearing the claim was advanced on the basis that the Secretary of State's policy found in chapter 55 of the Enforcement Instructions and Guidance, which enables immigration officers to make initial assessments of a person's age on the basis of their appearance and demeanour, is unlawful. Permission to appeal against that order was granted by Dame Janet Smith on 7 May 2015.

 2. There is a quirk in the rules which governs such applications for permission to appeal which has resulted in a different approach being applied depending upon whether the underlying refusal to grant permission to apply for judicial review was made in the High Court or in the Upper Tribunal. When the refusal is made at an oral hearing by a judge sitting in the High Court, it is possible for the single judge of the Court of Appeal when considering the application for permission simply to grant permission to apply for judicial review and remit it to the High Court for hearing. No such power is available when the proceedings come from the Upper Tribunal. It was for that reason that Dame Janet simply gave permission to appeal. These differences were discussed in the judgment of the Master of the Rolls in NB (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 1050.

 3.It is in those circumstances that the appeal before us is concerned with the question whether Upper Tribunal Judge Lane was wrong in all the circumstances to refuse permission to apply for judicial review. In the event that we were to conclude that he should have granted permission to apply for judicial review, by then virtue of section 16(8) of the Tribunals, Courts and Enforcement Act 2007 we would have power to decide the judicial review claim ourselves (again, see the discussion in NB at paragraphs 13 and then 23 to 25). In this case there would be a fundamental difficulty in our doing so. The respondent Secretary of State, given the stage reached in the proceedings below, has not filed any evidence. It would be necessary for the Secretary of State to do so to deal with the claim and in particular respond to the detailed evidence that has been filed in support. For that reason the parties have proceeded on the basis that if the appeal succeeds we should grant permission to apply for judicial review and remit the case for hearing to the Upper Tribunal.

 4. For reasons which I will elaborate in relatively short order, my conclusion is that the claim which the appellant wishes to advance in judicial review proceedings is indeed arguable and has prospects of success. The arguments advanced by Mr Buttler on the appellant's behalf, supported and amplified by Mr Chamberlain QC intervening on behalf of the Equality and Human Rights Commission, may or may not find favour in due course when fully argued out in the face of such evidence as is then before the court. Ms Rowlands on behalf of the Home Secretary has advanced serous arguments in response both in writing and orally this morning, but I am unable at this stage to say that they will necessarily prevail.  

16. As I have already foreshadowed, my conclusion is that the arguments advanced on behalf of the appellant and the intervener cannot be dismissed at this stage as unarguable or obviously without some merit. It may well be that in the face of full argument and detailed evidence form the Secretary of State that the arguments will fail, but that cannot be said that this stage, in my judgment. In those circumstances I would allow the appeal and grant permission to the appellant to apply for judicial review. It is common ground that we are not in a position to determine that judicial review claim because of the paucity of material before us. In the result the matter must be remitted to the Upper Tribunal for hearing.

 17. The question arises whether we should give directions. In my view the appellant must have permission to amend the underlying claim form to advance the challenge to the policy in the way in which it has evolved even since the hearing before the Upper Tribunal judge. That no doubt will include sweeping in the points advanced by the intervener. The Home Office must respond with detailed grounds of resistance and such evidence as it wishes to deploy. If my Lady and my Lord agree, we might hear brief submissions on directions generally and the timetable for the procedural steps that are needed, but, subject to that, the matter on remission to the Upper Tribunal will no doubt be considered with a view to further directions including the extent to which the intervener may take a part in the judicial review proceedings.

Lord Justice Bean: 18. I agree. Lady Justice Black: 19.I also agree.

Order: Appeal allowed