|Broken Pledge: Children to be Sent Back to Immigration Detention
One of the Coalition government’s first - and best - policies was to end the detention of children in immigration removal centres. But now it looks like May’s government is about to reverse that process. A written ministerial statement today announced the closure of Cedars, a removal centre for families run by the charity Barnardo’s. Instead, the people who would have been sent there will be moved to a “discrete unit” at Tinsley House removal centre, near Gatwick. Discrete or not, the children of those families will be back in an immigration detention centre.
Read the full Government Statement: http://tinyurl.com/hzxz7up
Immigration Detention HMCIP England and Wales Annual Report 2015/16
“There is a simple and unpalatable truth about far too many of our prisons. They have become unacceptably violent and dangerous places”
Chapter 6 Immigration Detention
During our inspections of immigration detention, perhaps the most shocking discovery was in Dover. While inspecting the immigration detention facilities there during summer 2015, inspectors found that another detention facility was being used for short-term detention of migrants who had sought to evade border controls. This was in a facility known as the Longport Freight Shed. We had not previously been notified of this facility, and the conditions that inspectors found when they insisted on visiting were totally unacceptable, even for fairly short periods of detention. Even after several months of use, conditions had not improved. The fact that the freight shed had been used at all to house detainees and that little, if anything, was done to improve matters over the course of the summer, betrays a shocking lack of contingency planning and agile response to a developing, although entirely predictable, situation. The facility has since been closed, and I have been assured that if such a situation arises again, we will be notified so that proper independent scrutiny can take place. A further inspection in the immigration detention estate that gave cause for great concern was at Yarl’s Wood immigration removal centre. The issues at this establishment were serious, and we have therefore included a specific case study in Section 6 of this report. Peter Clarke HMCIP
Download the full report: http://tinyurl.com/jle26z3
Magnificent Supreme Court Victory for The Public Law Project
The Public Law Project contended that the exclusion of a specific group of people from the right to receive legal services on the ground of personal circumstances or characteristics, which have nothing to do with the nature of the issue or services involved or the individual’s need, or ability to pay, for the services, is not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and that nothing in section 41 undermined that contention.
R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent)  UKSC 39
On appeal from:  EWCA Civ 1193
Following the entry into force of the civil legal aid reforms made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Ministry of Justice decided to introduce a residence test for civil legal aid via secondary legislation. If approved by Parliament, this would restrict civil legal aid to persons who are lawfully resident in the UK, Crown Dependencies or British Overseas Territories at the time of the application for civil legal aid, and have resided lawfully for a continuous period of at least 12 months (with certain exceptions). The issues before the Supreme Court were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is: (i) ultra vires the enabling statute and (ii) unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998. At the end of the hearing on 18th April the Supreme Court indicated that it was allowing the appeal on ground (1) and that it did not consider it necessary to hear argument on issue (2).
Following a hearing at which the Court heard argument on the ultra vires issue and indicated that it did not need to hear argument on the discrimination issue, the Supreme Court unanimously allows the Public Law Project’s appeal on the ultra vires issue.
Justices: Lord Neuberger (President), Lady Hale (Deputy President), Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes, Lord Toulson
Background to the Appeal
This appeal concerns the legality of attempts by the Lord Chancellor to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Part 1 of LASPO came into force on 1 April 2013. It includes section 9, subsection (1) of which provides that civil legal services are to be available to an individual if they are legal services described in Part 1 of Schedule 1, and the Director of Legal Aid Casework has determined that the individual qualifies for the services in accordance with Part 1 of LASPO. Part 1 of Schedule 1 accordingly sets out the services for which civil legal aid is available. Subsection 9(2) permits the Lord Chancellor to (a) “add” to, and (b) “vary or omit” services in Part 1 of the Schedule.
In April 2013, the Ministry of Justice (“MOJ”) issued a paper in which it stated that, subject to certain specific exceptions, the Government would proceed with the introduction of a residence test so that only those who are lawfully resident in the UK (or Crown Dependencies or British Overseas Territories) at the time of the application and have so resided for a continuous period of at least 12 months at any point in the past would be eligible for civil legal aid.
In September 2013, the Lord Chancellor decided to proceed with the proposal and to make regulations to that effect in the form of delegated legislation (“the draft order”), which was put before Parliament on 31 March 2014.
Before the draft order was laid before Parliament, the Public Law Project applied to the High Court for a declaration that the draft order was unlawful on the basis that it was (i) ultra vires, i.e. outside the scope of the power granted to the Lord Chancellor by LASPO to bring forward delegated legislation; and (ii) unjustifiably discriminatory in its effect.
The Divisional Court held that the draft order was unlawful on both grounds. Following the decision of the Divisional Court, the Lord Chancellor withdrew the draft order before any debate in the House of Lords could take place. On appeal, the Court of Appeal allowed the Lord Chancellor’s appeal on both grounds, holding that the draft order was intra vires and that, while it was discriminatory in its effect, the discrimination could be justified. The Public Law Project now appeal to the Supreme Court on both grounds.
Following a hearing at which the Court heard argument on the ultra vires issue and indicated that it did not need to hear argument on the discrimination issue, the Supreme Court unanimously allows the Public Law Project’s appeal on the ultra vires issue. Lord Neuberger gives the only judgment, with which the other Justices agree.
Reasons for the Judgment
The Public Law Project contend that the exclusion of a specific group of people from the right to receive legal services on the ground of personal circumstances or characteristics, which have nothing to do with the nature of the issue or services involved or the individual’s need, or ability to pay, for the services, is not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and that nothing in section 41 undermines that contention.
That argument is accepted by the Court . In declaring subordinate legislation to be outside the scope of the statutory power pursuant to which it was purportedly made, the Court is upholding the supremacy of Parliament over the Executive . Section 9(2)(b) provides a power to vary or omit services, but the relevant parts of the draft order do not seek to vary or omit services; rather, they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristics or circumstance unrelated to the services (i.e. length of residency) .
This interpretation of the wording of section 9(2) is supported by the wider statutory context. Each of the services identified in Part 1 and Part 2 of Schedule 1 is linked to a specific type of legal issue or claim, and has nothing to do with the personal circumstances or characteristics – in particular the geographical residence – of the potential recipient of the services .
This conclusion is also supported by contrasting the wording of the two subsections of section 9. Subsection (1) clearly distinguishes between the question of whether the particular services qualify and whether the particular individual qualifies . Section 9(2) is concerned with the services which qualify, and it is section 11 which appears to be concerned with identifying the characteristics or circumstances of individuals who are to qualify for civil legal aid. The criteria that section 11 sets out all relate to the issue involved, the services concerned, or the need of the individual for financial assistance, in contrast to the draft order. This indicates that the draft order is attempting to do something which the legislature never had in mind when enacting section 9 .
The Court of Appeal concluded that section 41 could be invoked to defeat the contention that the Lord Chancellor could not make the draft order under section 9. While it is true that section 41(2)(b) permits any order made under section 9(2)(b) to “make provision by reference to… services provided for a particular class of individual”, this cannot extend the power under section 9(2)(b) so as to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence . Section 41 is clearly intended to grant ancillary powers to those primarily granted under section 9 .
Accordingly, the appeal should be allowed on the first, ultra vires, issue, and the Court does not have to deal with the discrimination issue .
Full Judgment: http://tinyurl.com/gp23odw
How the Elite Weaponised Immigration
Freedom of movement ought to be one of the cornerstones of an open, liberal society. The freedom, that is, not just to seek refuge, but to search for a better life elsewhere, to pursue one’s dreams and ambitions in territories far from one’s birthplace. Yet if the commitment to free movement is to be more than a shallow, feelgood posture, we need to recognise, in the here and now of a 21st-century Britain, that immigration troubles and discomfits people. Indeed, it appears as a socially disorienting force, overturning the everyday rituals, customs and other unspoken components that make up a community’s way of life. ‘I feel we are losing our country’, ran the pre-referendum refrain.
So why does immigration appear as a profound threat to the way of life of so many? The answer is to be found not in immigration itself, but in the context in which immigration has assumed, almost inadvertently, a quasi-missionary role – the context, that is, of a Britain that no longer knows what it is, or what it is for.
Read more: Tim Black, columnist for ‘Spiked’ http://tinyurl.com/joon9wg
£2,000 Damages for Black Woman 'Stopped For Looking Foreign'
The Home Office has settled a case with a black woman for £2,000 after she alleged an immigration officer at Belfast City Airport stopped her because she "looked foreign". Her case, which was supported by the Equality Commission, was settled out of court with no admission of liability. The woman, who has been in the UK for 16 years, holds a British passport. Speaking afterwards, she said: "I thought then, and I still think now, I was stopped because I am black." The woman was leaving her mother-in-law to the airport when the incident occurred. After the drop off, she and her children were waiting to be collected when she was approached by an immigration officer who asked to see her passport or ID.
Read more: BBC News, http://tinyurl.com/zzhjaxy
Early Day Motion 366: Violence in Burundi
That this House notes and condemns the escalating political violence in Burundi; highlights the alarming number of alleged killings, torture, arbitrary arrests and enforced disappearances that have occurred there since President Nkurunziza defied the constitution and stood for a third term in office in April 2015; recognises that over 250,000 Burundians have fled to refugee camps in Tanzania, Rwanda, Uganda and the Democratic Republic of Congo; and calls on the UN, AU and the international community to redouble efforts to bring about peace and see the country return to stable governance.
House of Commons: http://tinyurl.com/hm8p7lf
Early Day Motion 359: Human Rights Gambia
That this House is very concerned about the situation in the Gambia with the continuing crack-down on freedom of expression, assembly and association, illustrated by the death in April of Solo Sandeng, Secretary of the opposition United Democratic Party, after being detained for participating in a protest in Banjul; is dismayed by reports of President Jammeh's recent comments, including his reference to the opposition as vermin and threats to bury them nine feet deep, and his threats to eliminate the Mandinka ethnic group; notes that the UN Special Advisor, on the Prevention of Genocide has expressed profound alarm at President Jammeh's public stigmatisation and dehumanisation of the Mandinka, and highlighted that hate speech constituting incitement to violence can be both a warning sign and a powerful trigger for atrocity crimes; further notes that President Jammeh has created a climate of fear since he seized power in a coup in 1994, resulting in thousands of Gambians fleeing the country; fears that repression could increase in the run-up to the Presidential elections scheduled at the end of 2016; and calls on the UK Government, together with the international community, to condemn the actions of the Jammeh Government, to seriously consider imposing punitive measures on President Jammeh and leading members of his regime, to secure support for a Special Rapporteur on the Gambia at the UN Human Rights Council, and to do more to assist and protect civil society in the Gambia.
House of Commons: 19.07.2016 http://www.parliament.uk/edm/2016-17/359
Early Day Motion 351: Plight of Minorities In Bangladesh
That this House condemns the recent killings of innocent Hindu priests in Bangladesh; urges the government of Bangladesh to take strong steps to tackle the increasing levels of violence against minority Hindu communities in the region and ensure their safety and security; and urges the Government to encourage the government of Bangladesh to put perpetrators of violence against religious minorities in the region on trial as soon as possible.
House of Commons: 19.07.2016
Six Wealthiest Countries Host Less Than 9% of World's Refugees
The six wealthiest countries in the world, which between them account for almost 60% of the global economy, host less than 9% of the world’s refugees, while poorer countries shoulder most of the burden, Oxfam has said. According to a report released by the charity on Monday, the US, China, Japan, Germany, France and the UK, which together make up 56.6% of global GDP, between them host just 2.1 million refugees: 8.9% of the world’s total.
Of these 2.1 million people, roughly a third are hosted by Germany (736,740), while the remaining 1.4 million are split between the other five countries. The UK hosts 168,937 refugees, a figure Oxfam GB chief executive, Mark Goldring, has called shameful. In contrast, more than half of the world’s refugees – almost 12 million people – live in Jordan, Turkey, Palestine, Pakistan, Lebanon and South Africa, despite the fact these places make up less than 2% of the world’s economy.
Read more: Kate Lyons, Guardian, http://tinyurl.com/jazbq5q
Frontline Immigration Advice Project
Cuts to legal aid have led to a huge reduction in the immigration advice available to asylum seekers and irregular migrants, many of whom are destitute and facing homelessness. At the same time, lack of immigration status is often the most significant barrier to escaping destitution. NGOs, charities and community groups are increasingly being asked for immigration advice by the individuals they support, but are unable to give this advice lawfully due to the close regulation of immigration advice and the barriers to achieving regulation with the Office of the Immigration Services Commissioner (OISC).
The Frontline Immigration Advice project aims to reduce the barriers organisations face by providing organisations with guidance, training, advice and support to help them to register with the OISC if that is what suits the organisation. The project uses web-based tools to deliver training and support to staff and volunteers from other organisations throughout the UK. The Frontline Immigration Advice Project volunteer will work with the Legal Officer, the Good Practice and Partnerships Manager and external trainers. They will provide practical and administrative support to the project, by:
- Facilitating training webinars on immigration law
- Liaising with partner organisations, trainees and external trainers
- Helping with the production of training materials
- On behalf of Refugee Action, taking queries from clients and members of the public and signposting or referring as necessary
Training will be provided, including the opportunity to study immigration law and register with the OISC.
Interviews will be held on July 22, 2016
Download and read the full volunteer role profile (PDF)
Source: Refugee Action, http://tinyurl.com/gtjh5h
Zimbabwean Nationals Who Refuse to Consent to Removal to Zimbabwe
JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department  EWHC 1773 (Admin) (15 July 2016)
- In these judicial review proceedings JM (whose identity is subject to an anonymity order and will hereinafter be referred to as "the Claimant") seeks declaratory relief, damages for false imprisonment at common law, and damages for breach of Article 5(1)(f) of the ECHR, in relation to his detention pursuant to immigration powers between 5th May 2013 and 25th May 2016, excluding a period when he was detained pursuant to the sentence of the court in criminal proceedings.
- This is yet another case concerning the automatic deportation regime enacted by Parliament in the UK Borders Act 2007 ("the 2007 Act"), and the application of well-established Hardial Singh principles. These cases typically turn on a close examination of the Defendant's decision making at all material times, and matters of minutiae. However, the instant case also raises, for the first time, an important point of principle concerning the true construction and application of section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ("the 2004 Act") to Zimbabwean nationals who refuse to consent to removal to their homeland. But before this point of principle is thrown into sharp relief, and then analysed, it is necessary to set out the core background.
Published on Baili, 15/07/2016