News & Views Monday 19th June to Sunday 25th June 2017  
S.M.M. a Zimbabwean National v. the UK – Unlawful Detention- Violation of Article 5 § 1

The applicant, S.M.M., is a Zimbabwean national who lives in London. Relying on Article 5 § 1 (f) (right to liberty and security) of the European Convention, he claimed that he had been detained unlawfully between November 2008 and September 2011. He was detained during that time on the basis that he was awaiting deportation from the UK. In September 2011, he was released on bail and one year later he was granted asylum in the country. He argued that the authorities had detained him unlawfully, by failing to apply regulations requiring the release of persons detained under immigration rules who had been victims of torture or who had been suffering from a serious mental illness. He also claimed that it had been unlawful to detain him on the grounds that he had been awaiting deportation, given that there had been a moratorium on enforced removals to Zimbabwe imposed by the Secretary of State up until October 2010. Finally, S.M.M. argued that his detention had been arbitrary and disproportionate, due to its excessive length.

Violation of Article 5 § 1

Just satisfaction: The Court held that the finding of a violation constituted sufficient just satisfaction for any damage suffered by S.M.M. It further awarded him 7,000 euros (EUR) for costs and expenses.

Full judgment:

Legal Challenge Begins Over Unaccompanied Child Refugees

A legal challenge to the Government’s failure to implement the Dubs Amendment has begun in the High Court. The charity Help Refugees is represented by Leigh Day solicitors will argue that the government’s closure of the Dubs scheme, after so few children have so far benefited from it, constitutes a failure to implement the amendment properly.

The Dubs Amendment, otherwise known as section 67 of the 2016 Immigration Act, requires the government to make arrangements ‘as soon as possible’ after the passing of the Immigration Act (on 31 May 2016) to relocate and support a ‘specified number’ of unaccompanied refugee children from Europe. The Government is required to consult with local authorities to determine the number of children to be relocated under the scheme, which was devised in response to the 2015 refugee crisis in Europe, deemed to be the worst such crisis seen since the Second World War.

Help Refugees are challenging the Home Secretary, Amber Rudd, over the government’s failure to comply properly with its duty under the Dubs Amendment, arguing that the Government unlawfully omitted evidence of hundreds more places for children to be relocated in order to calculate the ‘specified number’ of 350 – later revised to 480 – children to come under the scheme, and that the Government failed to fulfil the Dubs Amendment’s requirement that action to relocate and support these children must come ‘as soon as possible’ – only around 200 children have so far been relocated from Calais to the UK in just over a year, and there are still relocations from Greece and Italy to go.

Read more: Eleanor Sheerin, Justice Gap,
Supreme Court Rules UK System For Deporting Foreign Criminals Unlawful

The Home Office’s “deport first, appeal later” policy for removing foreign criminals has been ruled unlawful by the supreme court. More than 1,100 foreign criminals have been removed from Britain under the system, which was introduced in July 2014. It was a Conservative manifesto pledge and denies foreign criminals the right to launch an appeal against deportation while they are in the country. But lawyers say that the ruling handed down on Wednesday was expected to “very heavily limit, if not entirely curtail” the routine use of the controversial power.

The ruling, handed down by the deputy president of the supreme court, Lady Hale, and four other justices, said the system breached foreign criminals’ human right to an appeal as their ability to present their case from abroad was likely to be obstructed in a number of ways. The case involved two men convicted of drug offences who had both served prison sentences. The first, Kevin Kiare, came from Kenya in 1997 with his family at the age of three. The second, Courtney Byndloss, a father of eight, came to the UK in 2002 and was later given leave to remain as the spouse of a British citizen.

Read more: Alan Travis, Guardian,

Barriers to Citizenship Facing Stateless Children Born in the UK

Stateless children born in the UK have a right to register as British citizens after living here for a continuous period of five years. But various practical hurdles undermine this vital provision for reducing statelessness. The UK is, therefore, falling short in respect of its obligations regarding both statelessness and children’s best interests.

To register under paragraph 3 of Schedule 2 to the British Nationality Act 1981 a stateless person must meet four conditions. She or he must be born in the UK; have always been stateless; be under the age of 22 and living in the UK at the time of applying to register; and at the date of application have spent the last five years living in the UK (with no more than 450 days absence during this period unless ‘special circumstances’ are shown).

If these four conditions are met, the applicant is entitled to British citizenship when she or he applies.

However, having an entitlement to something is not the same as being able to claim it.  
Read more:
CPIN Somalia: Majority Clans and Minority Groups in South and Central Somalia

1.1 Basis of claim

1.1.1 Fear of persecution or serious harm by non-state actors on account of a person’s membership of a majority clan or minority group.

1.2 Points to note

1.2.1 This note is focused on south and central Somalia. Where needed, decision makers should seek advice on the treatment of major clans and minority groups in other areas of Somalia on a case-by-case basis.

1.2.2 The four majority clans in Somalia as a whole are the Darod, Hawiye, Isaaq and Dir. Two further clans, the Digil and Mirifle (collectively referred to as Rahanweyn), take an intermediate position between the majority clans and the minority groups. Minority groups are comprised of ethnic and religious minorities, and occupational/out-caste groups. The latter are of the same ethnicity as members of the majority clans (see Clan system).

1.2.3 The term ‘group’ can mean a particular dominant ethnicity associated with a geographical location or language, or could loosely mean a clan as in an alliance of separate descent groups living in the same cities.

1.2.4 Members of majority clans can be considered minorities where they live in an area mainly populated by other majority clans.

Published on Refworld, 15/06/2017
Dublin 111 Regs: Transfer (take charge) Requests – Subject to Time Limit

Advocate General’s Opinion in Case C - 670/16 Tsegezab Mengesteab v Bundesrepublik Deutschland

 Advocate General Sharpston considers that an applicant for international protection can challenge a Member State’s decision to transfer him to another Member State on the basis that the ‘take charge request’ sent by the first Member State was not made within the time limits set out under EU law 

In the Advocate General’s opinion, the Dublin III Regulation, the relevant legislation, is no longer a purely inter-State mechanism and the operation of time limits has substantive implications for the applicants and the Member States concerned 

Source: Curia,
Victims of Rape in Conflict Zones Should Not be Stigmatised

Survivors of sexual violence in war zones need to be recognised as legitimate victims of conflict and terrorism – they must not be blamed, stigmatised or shamed.  This point was raised last month by 70 countries before the United Nations Security Council in an open debate and Monday was the UN's international day for the elimination of sexual violence in conflict.

Sexual violence is increasingly used as a tactic of terrorism, employed by extremist groups in Iraq, Syria, Yemen, Somalia, Nigeria, Mali and Sudan to advance their military, economic and ideological ends.  It terrorises civilian communities. It is used to change the ethnic make up of the next generation. It enables hostile occupations and is a means of paying soldiers by way of forced brides and sex slaves. It has been used to deliberately infect women with HIV and render some incapable of bearing children.  Many victims are left not just traumatised but also stigmatised by their communities and blamed for the abuse. Perpetrators understand this. Victims become outcasts because of the shame.

Read more: Hilary Lennox, ‘The Brief’,
So, Your Country Isn't Keen to Resettle Refugees. Are You?
 Last September, 193 member states attending the UN summit on refugees and migrants in New York committed to take in more refugees through resettlement and other legal avenues. Nine months later, and with more refugees than ever in need of resettlement – 1.2 million according to the UN’s refugee agency, UNHCR – countries have actually reduced the number of places on offer by 43 percent. While a record 125,800 refugees were resettled in 2016, only 93,200 places are expected to be made available this year.

Although UNHCR doesn’t assign blame to any one country, the reduction is undoubtedly the result of US President Donald Trump’s executive order capping refugee resettlement to the United States for fiscal year 2017 at 50,000, down from 85,000 the previous year.

Read more: IRIN,
Explainer: What is a Public Inquiry?

This week the government announced that there will be a public inquiry into the tragic fire at Grenfell Tower. So what is a public inquiry, how does it differ from a ‘public inquest’, and what’s it got to do with human rights? Public inquiries are set up by the government, under the Inquiries Act 2005, to investigate events which have or could cause public concern. They can be led by one person or a panel, who take evidence in the form of documents and oral testimony regarding the events in question. Often, the inquiry will be chaired by a currently serving or retired judge. The focus of an inquiry is first to determine exactly what happened, and then to work out what must be done to prevent it from happening again. At the end of this process, the inquiry will produce a report detailing the key factual findings and any recommendations. Public inquiries do not have the power to say that a particular person is liable for acts they have committed, but these findings of fact may be used to initiate criminal or civil proceedings.

How are they different from inquests?
The scope of issues that an inquiry may look at – referred to as the ‘terms of reference’ – can be very broad, and will be tailored to suit the needs of the case at hand. This tends to include a focus on establishing exactly what went wrong, and the systemic lessons that must be learned to prevent similar incidents in the future. Inquests on the other hand are more restricted, centred on investigating the direct circumstances of a death or deaths.

The two are not mutually exclusive. There can be an inquiry and multiple inquests into a particular event, but all inquests will be suspended during the course of the inquiry. A jury may be summoned where there is an inquest, but not for an inquiry.

Read more: Rights Info,
One Person Forced to Flee Their Home Every Three Seconds by War and Violence

The number of people forced to flee their homes by war and persecution has risen to record levels for the third year running, with 65.6 million people displaced around the world – more than the population of Britain. The latest annual global trends study from the UN refugee agency (UNHCR) reports that one person was forced to leave their home every three seconds in 2016. The number of people displaced last year was 300,000 higher than in 2015.

Half of all refugees were children. A further 2.8 million people sought asylum. Germany, which received 722,400 asylum claims, was the largest recipient of new applications, followed by the US, Italy and Turkey. At least 75,000 asylum claims were received from an unaccompanied child. The vast majority of displaced people, 40.3 million, left their home but did not cross the border of their country. Syria, Iraq and Colombia – which has endured decades of conflict – had the largest number of internally displaced people.

Read more: Rebecca Ratcliffe, Guardian,
Failure to Abide With the Right to Work Checks

UK employers have a statutory obligation to carry out Right to Work checks in respect of prospective employees to prevent illegal working within the UK. The Home Office expects that employers carefully and systematically check each employees identity and their Right to Work within the UK. Employers are often failing to ensure that the crucial Right to Work documents are successfully obtained, leading to severe cost sanctions from the Home Office. Additionally, not only are employers expected to obtain sufficient Right to Work checks before commencing employment, but there is also an ongoing duty for the employer to ensure that the employees correct up-to-date documents are sufficiently held on their HR files.

In May 2014, the Right to Work requirements were updated in which the principal change was that the maximum civil penalty that a UK organisation could receive for employing illegal workers in the UK is between £10,000 to £20,000 per illegal worker. Failure to sufficiently carry out the Right to Work checks could subsequently mean that employees do not have the Right to Work within the UK. The changing rules of the rights to work within the UK means that it is easy for employers to make mistakes in respect of these requirements.

Read more: Gherson Immigration
Unannounced Inspection of Eaton House Short-Term Holding Facility

Thirteen detainees were held on the day of our inspection. The facility comprised a single holding room and a staff office. It was too small for the number held and the booking-in processes were slow. Parts of the facility were in a poor state of repair. Several rough sleepers were held but there were no washing facilities and they were not routinely given the available hygiene packs. Detainees were routinely handcuffed the short distance from the facility to escort vehicles. Members of an Independent Monitoring Board did not visit the facility.

Eaton House is a hub for Home Office immigration functions in West London. The building houses a reporting centre attended by foreign nationals as part of the conditions of their temporary admission to the UK. The reporting centre was open from 9am until 4pm, Monday to Friday. About 500 people reported each day. Two immigration compliance and enforcement (ICE) teams also operated from the building. The building housed a short-term holding facility run by private contractor Tascor, open from 9am until 6pm. The Home Office held people detained after attending the reporting centre or those that ICE teams had apprehended in the community.

Read the full report: