News & Views Monday 21st November to Sunday 27th November 2016  

As a Judge, I Can See the Racism Embedded in the Justice System

There is a crisis of trust and confidence in the judicial system among black communities. It is not ‘colour blind’ but arbitrary and discriminatory

Britain often claims to possess the finest justice system in the world, with a “colour blind” approach to the law. Unfortunately, this isn’t true: justice is neither colour blind, nor is it equal. Historically, the justice system has been used to legitimise slavery, and then colonialism, from Elizabethan England onwards. In Kenya, between 1951 and 1954, during the Mau Mau uprising, more than 1,090 Kenyans were executed by the British colonial judiciary, backed by the Foreign and Commonwealth Office. This appalling figure represents the most liberal use of the death penalty in British legal history and is double the number of those executed by the French during the war of liberation in Algeria 10 years later. In more recent times, judges have enforced the unjust “sus” laws (the informal name used for stop-and-search laws which still disproportionately affect BME people). It can be argued that racism is embedded in the DNA of the British judiciary and that it has proved uniquely resilient to education or training.

But to what extent is racism present in the system today? A study headed by David Lammy MP, published last week, makes for very disturbing reading. In 1991, statistics regarding how differently BME and white suspects were dealt with in the criminal justice system helped to trigger race training for all full-time judges over a five-year period. Those statistics have not improved. If you are an African-Caribbean man you are 16% more likely to be remanded in custody than if you are white; you are also likely to obtain a custodial sentence of 24 months compared to your white counterpart’s 17 months. This is not because African-Caribbean men commit more serious offences than their white counterparts – these are punishments handed down for the same or similar offences. African-Caribbean men are also subject to receiving immediate custodial sentences with fewer previous convictions than their white counterparts. Our perceptions have become the reality that means 41% of all young people in detention are now from BME communities. If you are African-Caribbean you are 16% more likely to be remanded in custody than if you are white

What is critical is that the report highlights, yet again, the fundamental racist disparities in the dispensation, administration and dissemination of justice. There is a crisis of both trust and confidence in the British judicial system among black communities. Their concerns are that it remains arbitrary, inconsistent and discriminatory. This interim report proves them right – despite its diplomatic language.

Read more: Peter Herbert, Guardian,

Proving Torture - Demanding the Impossible

‘Freedom From Torture’s’, new report ‘Proving Torture' reveals how Home Office asylum caseworkers disregard or mistreat expert medical evidence of torture and make clinical judgements about survivors’ injuries that they are not qualified to make. This goes against a clear Home Office policy and leaves exceptionally vulnerable people terrified of being returned to face further torture.
For many survivors of torture, proving what has been done to them is becoming near impossible, even when they present extensive medical evidence. Freedom from Torture's expert clinicians provide in depth evidence documenting torture scars and psychological trauma in line with international standards as part of a torture survivor’s asylum claim. But bureaucracy and poor decision making mean that torture survivors can be wrongly refused asylum and they experience months and often years of disbelief and uncertainty. When a survivor of torture is wrongly refused asylum, they experience unimaginable distress. For many people, it’s life or death. They know that when the wrong decision is made, they could be forced to return to their torturers. Legal appeals are harrowing for them and costly to UK taxpayers.

Read more: Freedom From Torture,

Home Office Ordered to Review Policy on Torture Survivors

Hundreds of asylum seekers who are detained in UK immigration centres could be released after a high court judge ordered the government to review its policy on incarcerated torture survivors.  Justice Duncan Ouseley ruled on Monday that the Home Office must immediately provide “relief” to detainees at an interim hearing, releasing survivors of torture from countries such as Afghanistan, Nigeria and Sri Lanka. Human rights lawyers, representing an initial 20 cases, had launched a legal challenge against the Home Office’s new definition of “torture” introduced in September, arguing that an unreasonably strict interpretation of the word meant that “potentially hundreds” of people have been illegally detained after claiming asylum in the UK.

Read more: Diane Taylor, Guardian,

Stop the Deportation of Dianne Ngoza

As expected Dianne was detained last Thursday when she signed on at Dallas Court Home Office Reporting Centre Manchester and is now in Yarl’s Wood Removal Centre. Upon arriving at YW, Dianne contacted her supporters with the following message:

"Please keep on supporting me and tell the world about what is going on. Fight for everyone please. People are being wrongly detained, even when they have a right to stay in England. I care so much for everyone. I'm so thankful and I've been immensely touched by everyone's support, it's something I'll never forget for the rest of my life"

Dianne's Campaign to Stop her Removal from the UK and how to help

Many thanks to everyone for your continued support of Dianne Ngoza, a Zambian nurse who has lived in the UK for 14 years. Dianne was detained when she went to report at Dallas Court on Wednesday, 16th November, and the Home Office plan to deport her. Dianne has not lived in Zambia for more than 20 years and has no family or contacts there. Her daughter and all her friends are in the UK and this is her home. Dianne has been destitute for six years due to a series of errors by immigration solicitors. She made a new application for leave to remain in the UK four months ago but, at the beginning of November, this was rejected by the Home Office.
She was told she would be deported and that, although she had the right to appeal against the Home Office's decision to refuse her application, she would have to appeal from Zambia.

We are asking the Home Office:

  1. Why they have not released her from detention in Yarl's Wood Immigration Removal Centre, Bedfordshire?

Dianne submitted fresh evidence in her case to the Home Office before she was detained and they are legally obliged to consider that

  1. Why she is not being allowed to appeal against the Home Office decision from within the UK?

New legislation will make in country appeals much more difficult from December 1st but that legislation is not currently in force

Why her supporters at Dallas Court on Wednesday were told Dianne would be taken to Pennine House, the short-term detention centre at Manchester Airport? She was taken to Yarl's Wood in Bedfordshire instead
Dignity for Dianne
As media coverage has shown and pending court cases against Yarl's Wood officers demonstrate, Yarl's Wood is no place for Dianne – or any other woman – to be.

When Dianne's supporters stopped the van from taking her to a detention centre on Wednesday, the duty deputy manager at Dallas Court said it was “not fair” to keep her there because she only had a chair to sit on and had not eaten for nearly seven hours since her arrival at the reporting centre that morning.
He said Dianne needed a bed and a meal. This might have been possible if she had been taken the short distance to Pennine House at Manchester Airport. Instead she was forced to make a three-hour journey to Yarl's Wood where she had to sit on another chair in a waiting room until well after midnight when she was given a bed. The only food she received consisted of two apples.
 What You Can Do

  1. Email of send a letter to your MPs

Dianne is a constituent of Manchester Central MP Lucy Powell.
If you are one of Lucy's constituents, please write to her using the model letter attached here.

You can send the letter by:

  1. If you are not a constituent of Lucy Powell's, you can still write to your own MP using a different model letter attached here. Use or find their contact details through their websites
  1. Most MPs are on Twitter so you can tweet them as well.

 Thank You to Everyone – Dignity for Dianne!

Please notify the campaign it you contact your MP

RAPAR - Kath Grant <>

Right to Rent Scheme Has Negative Impact on All Citizens

The UK government’s ongoing efforts to create a hostile environment for individuals living in the UK illegally could have a negative impact on British citizens. In 2013, the then Home Secretary Theresa May announced plans to create a “hostile environment” across housing, health care, and everyday necessities such as banking and transport. It was the start of the “deport first, appeal later” approach that is now common practice across the immigration service.

However, these Right to Rent measures aimed at making it difficult for citizens from outside the UK to find a place to live might also be creating a hostile environment for British citizens. A recent survey by the Residential Landlord Association revealed that 43% of landlords reported they would avoid renting to anyone who couldn’t produce a British passport. This could spell bad news for the 17% of the British population who don’t hold a British passport. These are typically the most vulnerable in society and will likely already face many obstacles to living a normal life.

Read more: Roman Winter, 22/11/2016

MM Allowed -  KO dismissed - Meaning of the Term "Unduly Harsh

MM (Uganda) & Anor v SSHD (Rev 1) [2016] EWCA Civ 617 (20 April 2016)

1. These are two appeals which Underhill LJ has directed to be heard together. Their principal focus is the meaning of the term "unduly harsh" in paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002.

2. The context is the statutory regime for the removal of foreign criminals from the United Kingdom pursuant to section 32 of the UK Borders Act 2007. A foreign criminal as defined by section 32(1) is liable to automatic deportation by the Secretary of State under section 32(5) but he may avoid deportation if in reliance on Article 8 of the Human Rights Convention he can show that the effect on a qualifying child or partner would be "unduly harsh". I will set out the statutory provisions below. There are conflicting decisions of the Upper Tribunal on the meaning of the term "unduly harsh". A number of prospective appeals in this court await our judgment in these two cases. MM is the Secretary of State's appeal with permission granted by Sir Maurice Kay on 24 April 2015. In KO the foreign criminal is the appellant with permission granted by the Upper Tribunal on 29 October 2015.

3. I turn to the relevant legislation. I need not recite the provisions of the 2007 Act relating to foreign criminals. MM and KO are both foreign criminals within the meaning of the Act. By section 33(2) a foreign criminal is not to be deported if that would breach his Convention rights. Article 8 is most often in play in such cases. Legislation which governs the administration of Article 8 in foreign criminal cases has been amended. With effect from 28 July 2014 a new Part 5A was added to the Nationality, Immigration and Asylum Act of 2002. It applies where a court or tribunal is required to determine whether a decision made under the immigration acts breaches a person's rights under Article 8 (see section 117A(1)) as well as the considerations set out in section 117B. In cases concerning the deportation of foreign criminals the court or tribunal must have regard to the considerations set out in section 117C. That section provides:

   Order: MM: Appeal allowed    KO: Appeal dismissed
Read the full transcript:

Save Bashir Naderi, Our 19-Year-Old Friend, From Imminent Deportation!

Bashir is a 19-year-old boy who was trafficked to the UK at the age of 10 to escape the Taliban in Afghanistan. His father, a police officer, was murdered by the Taliban and his mother sold the family's land to pay traffickers to protect her little boy - it took Bashir a whole year to make the arduous trip to the UK.  For the last 9 years, Bashir has lived in Cardiff within a loving foster family, accepted by and part of our UK society. He is fully integrated, Westernised, has a loving long term relationship with the lovely Nicole (in the photo with Bashir) and speaks with a Cardiff accent!  His Catholic school, Mary Immaculate Cardiff, fully support Bashir. He has no contact with his Afghan family and doesn't even know if they have survived.

The campaign to stop the deportation of an Afghan teenager who fled to Britain as a 10-year-old after his father was murdered has received a significant boost. The Home Office has agreed to consider fresh submissions on the case of Bashir Naderi and to review its decision to send him back to Afghanistan. More than 13,000 people have now signed a petition calling for Naderi to be allowed to stay in Cardiff, where he is a student and has a long-term girlfriend and loving foster mother. Politicians from all four parties at the Welsh assembly, including Ukip, have called for the UK government to think again, and celebrities including the Welsh singers Charlotte Church and Cerys Matthews have voiced support.

You can sign the Online Petition here:

Removal Windows, Injunctions and Out of Country Appeals: The Acceleration of Enforced Removals

At the beginning of this month the Home Office brought into force new guidance on the suspension of removal directions for pending judicial reviews. There are two crucial changes to the policy:

(1) At present, when a judicial review is brought within 3 months of a previous judicial review or appeal, the Home Office will only suspend removal on receipt of an injunction. This period is now extended to 6 months.

(2) The second is new, building on the new removals process established by the Immigration Act 2014. Where a person is notified that they are liable to removal, the Home Office gives 7 days (or 72 hours if a person is in detention) notice period before removal. During this notice period, the person can seek legal advice regarding their liability for removal. This is followed by a 3 month “removal window” during which the person can be removed without further notice. The Home Office will now not normally suspend removal where a judicial review is brought within the 3-month removal window unless an injunction is granted.

Read more: Lotte Lewis-Smith,

Domestic Violence Rule: Evidence

The  three judgments discussed below provide vital guidance on the approach that decision-makers should take in considering applications relating to the domestic violence rule. They emphasise the need for decision-makers to ensure that the purpose of the rule - to protect survivors of domestic violence - is not defeated by too narrow interpretation of what constitutes domestic violence or too restrictive an approach to evidence.

Whatever evidence is submitted; the decision maker must carefully consider it. In AG (India) [2007] EWCA Civ 1534 the Court of Appeal was critical of the Tribunal’s failure to explain why a woman’s account and other supporting evidence of the domestic violence she had experienced and the breakdown of her marriage were rejected, stating at paras 17 and 18 that: 

 “In fact, there is no explanation of why the immigration judge rejected the appellant’s account if he did so.  Her account is at least supported by some other evidence, albeit largely hearsay, and in some respects self-serving. The immigration judge makes sceptical observations about some of it, but he does not explain why none of it helps the appellant at all.  It is right to say -- this is of some importance -- that much of the appellant’s case involved threats or other forms of cruel treatment short of physical violence; but, as I have shown, the meaning of domestic violence within the Rule embraces just such forms of conduct.  If the immigration judge was going to reject the whole case as to the events of domestic violence, whether involving bodily attack or not, much more penetrating reasoning would have been required. He may have been entitled to reject it or, if he accepted it, he might well have accepted the points now made by Mr Johnson as to causation; but in the absence of any satisfactory finding as to the domestic violence that was alleged, those possibilities cannot, in my judgment, assist the respondent.  

It is not clear whether, had the immigration judge accepted the factual case about the violence, he would have held it had no causative force in the breakdown of the marriage.  I would not accept Mr Johnson’s submission that, as the evidence stands, no reasonable immigration judge could conclude (putting the evidence at its highest for the appellant) that the violence was a substantial cause of the breakdown.”

In Ahmed Iram Ishtiaq [2007] EWCA Civ 386_ the applicant was unable to provide the evidence requested (under a previous application form) because she had been prevented from leaving the family home or making contact with services by her violent husband. Her application under the domestic violence rule was therefore rejected and her case progressed to the Court of Appeal. Dyson LJ, who gave the judgement of the court, said that the domestic violence rule should be construed purposefully not narrowly; that to require cogent evidence to prove that a relationship had broken down permanently would defeat the purpose of the rule; and the bar to be met by applicants was not a high one (see paras 32-40): 

“In my judgment, para 289A(iv) should be construed so as to further the policy of enabling persons whose relationships have permanently broken down as a result of domestic violence before the end of the probationary period to be granted indefinite leave to remain.  A construction which precludes an applicant, whose relationship has in fact broken down as a result of domestic violence, from proving her case by producing cogent relevant evidence would defeat the evident purpose of the rule.  The purpose of para 289A(iv) is to specify what an applicant has to prove in order to qualify for indefinite leave to remain during the probationary period: viz that the relationship has been caused to break down permanently as a result of domestic violence.  It is not the purpose of para 289A(iv) to deny indefinite leave to remain to victims of domestic violence who can prove their case, but cannot do so in one of the ways that have been prescribed by the Secretary of State in his instructions to caseworkers.

For the reasons that I have given, I would hold that para 289A(iv) gives the caseworker a discretion to decide what evidence to require the applicant to produce in the individual case.  In exercising that discretion, I would expect the caseworker usually to start by applying the guidance given in section 4 of chapter 8 of the IDIs.  But if the applicant is unable to produce evidence in accordance with that guidance, it would seem to me that the caseworker should seek an explanation for his or her inability to do so.  If the applicant provides a reasonable explanation for her inability to produce such evidence, then the caseworker should give the applicant the opportunity to produce such other relevant evidence as she wishes to produce”.
The guidance and Ishtiaq were considered more recently in R (Balakoohi). In para 35 of the judgement HHJ Anthony Thornhill QC summarised the relevant requirements and discussed the weight that should be accorded to different forms of evidence, including evidence that is unsupported and non-independent, stating that:

 “The exercise required of a caseworker in this area is often difficult and usually fact-sensitive. It involves the exercise of professional judgment or discretion which should be carried out using a structured decision-making process and a review of, and reliance so far as possible on, the entirety of the evidence presented. In doing this, the caseworker in reaching a decision should use the IDIs as guidance and not as a mandatory series of prescriptive steps which must lead to an unfavourable decision for the applicant if any step provided for in the guidance cannot be fulfilled.”

Source: Solange Valdez, Solicitor at Migrants Resource Centre  and Director of the Project for the Registration of Children as British Citizens PRCBC)