News & Views Monday 24th April to Sunday 30th April 2017  
Safe Return Review Refugee Policy 'Beyond Basic Morality'

Fifty organisations from across the UK who work with refugees have written to Home Secretary Amber Rudd calling on her to reverse a policy that they say is "beyond basic morality".  Refugees will now take part in a "safe return review" five years after their refugee status is granted.  The review will decide if refugees are able to stay in the UK or will return to their home country.  

The Home Office said it could not comment because of "purdah" rules. These limit government activity during the pre-election period. The department issued updated guidance on the process by which refugees already living in the UK apply to stay here permanently.  Under the new policy, all those who apply for settlement will be subject to a so-called "safe return review" to check the current situation in their home country.  Campaigners claim the new measures would "put an end to hope of stability" and end any possibility of refugees being able to integrate into society.

Organisations that have signed the letter include Black Lives Matter UK, the Northern Ireland Community of Refugees and Asylum Seekers, the Scottish Refugee Council, Migrant Voice, Space4U Cardiff, Manchester Migrant Solidarity and Calais Action.

Read more: BBC News,
Refugees Applying to Live In UK Face Being Sent Home After Five Years

Tens of thousands of refugees who apply to live permanently in Britain are to be required to undergo an official review to see if it is safe for them to be sent back home, under new Home Office instructions. The new policy of reviewing whether all refugees still require protection five years after they first obtained asylum in Britain was quietly slipped out on Thursday and it is believed to take immediate effect. The new instructions were foreshadowed by Theresa May in her notorious “chilling and bitter” 2015 Conservative party conference speech when, as home secretary, she made clear that in future those who secured refugee status in Britain were only being given temporary protection. “We’ll introduce strengthened ‘safe return reviews’ – so when a refugee’s temporary stay of protection in the UK comes to an end, or if there is a clear improvement in the conditions of their own country, we will review their need for protection. If their reason for asylum no longer stands and it is now safe for them to return, we will seek to return them to their home country rather than offer settlement here in Britain,” she told her party conference.

Read more: Alan Travis, Guardian,

R (application of SS ) v SSHD  ("Self-Serving" Statements) [2017] UKUT 164 (IAC)

[(1) The expression "self-serving" is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter written by a third party to an applicant for international protection may be "self-serving" because it bears the hallmarks of being written to order, in circumstances where the applicant's case is that the letter was a spontaneous warning.

(2) Whilst a statement from a family member is capable of lending weight to a claim, the issue will be whether, looked at in the round, it does so in the particular case in question. Such a statement may, for instance, be incapable of saving a claim which, in all other respects, lacks credibility. ]

Judge Peter Lane
1. T he applicant, a citizen of Sri Lanka, who claims to be in need of international protection, challenges the respondent's decision of 18 September 2015, rejecting the applicant's further submissions and declining to treat them as a fresh asylum or human rights claim for the purposes of paragraph 353 of the Immigration Rules. Permission to bring the proceedings was granted by Upper Tribunal Judge Kopieczek, following a renewed permission hearing on 13 May 2016.

34. Drawing the threads together, I find that not only is the decision letter materially flawed for the reasons I have given, it is also not possible to conclude that, absent those flaws, the respondent's decision would have been bound (or even likely) to have been the same. A hypothetical judge who accepted the applicant's account (and the Sri Lankan evidence) as credible may well conclude that the applicant is at real risk, applying the current country guidance.

35. My conclusions mean that the respondent's decision falls to be quashed. It is, in these circumstances, immaterial whether there are discrete legal errors in the respondent's handling of the mental health issues raised by the applicant. I do not, however, consider that the recent Grand Chamber case of Paposhvili v Belgium (App No 41738/10, ECTHR 31/12/16) would itself cause any relevant part of the respondent's decision to be treated as invalid. To the extent that Paposhvili runs counter to binding domestic case law, the latter must, of course, prevail at Tribunal level. In particular, the respondent properly addressed the applicant's risk of suicide, by reference to the judgments in J [2005] EWCA Civ 629.

36. The respondent's decision of 18 September 2015 is quashed. I shall hear Counsel on the issue of costs, in the absence of agreement.

Published on Bailii, 24/04/2017
Upper Tribunal Has the Same Power as the High Court to Stay Proceedings

AO & AM, R (on the application of) v SSHD (stay of proceedings - principles) [2017] UKUT 168 (IAC) (28 March 2017)

[ (i)                  The Upper Tribunal has the same power as the High Court to stay proceedings.

 (ii)                The most important factors influencing the exercise of this discretionary power will normally be found in the overriding objective.

 (iii)              Great caution is required where a stay application is founded on the contention that the outcome of another case will significantly influence the outcome of the instant case.

 (iv)              A stay application will require especially compelling justification in a case qualifying for urgent judicial decision.

 (v)                The cases of unaccompanied, isolated teenagers marooned in a foreign land suffering from major psychological trauma and seeking, via litigation, the swiftest reunion possible with a separated family member will always, in principle, have a powerful claim to judicial prioritisation. ]

McCloskey J
(1)            This decision determines the applications made by the Respondent, the Secretary of State for the Home Department (the " Secretary of State"), for a stay of both sets of proceedings. The relief pursued is framed in the following terms:
" An order that this claim be stayed along with all other related proceedings behind the Administrative Court case of Citizens UK v SSHD (CO/5255/2016) as the issues in dispute are the same ...."

The following order is sought in the alternative:

" ... as an alternative that the Tribunal transfer this claim and all other claims raising the same issue to the Administrative Court so that all related claims can be case managed appropriately with reference to the overriding objective."

It may be observed that this alternative form of relief rather faded away in both the oral and written submissions of Mr Reynolds.

Order and Directions
(29)        I refuse the Secretary of State's applications accordingly.

(30)       The Secretary of State's written representations on the issue of the further timetabling and management of these two cases will be provided by close of business on 29 March 2017.

(31)       The Applicants' riposte will be provided by close of business on 30 March 2017.

(32)       The parties' representatives will file an agreed draft case management order, or their competing case management orders, by 12 midday on 31 March 2017. The Upper Tribunal will aspire to, but cannot guarantee absolutely, appropriate further directions/ by late 31 March 2017 - and in any event by 08.00 on 03 April 2017.

(33)       I shall continue to hold in reserve for as long as is possible 04 April 2017 to deal with interim relief and/or "rolled up" applications.

(34)       I recognise the possibility that a slightly later date for the hearing of any such application may be required in fairness to the Secretary of State. Beyond this I do not venture. The parties' representatives are aware of the practical outworkings of this.
(35)       There shall be liberty to apply.

(36)       Costs are reserved.

Published on Bailii, 24/04/2017

Those Granted Asylum in the UK – Immediately Made Homeless

Refugees in the UK are being consigned to hunger and homelessness immediately after they are granted asylum, a report has found, in what has been described as a “timely wake-up call” about the plight of refugees seeking sanctuary in the UK. The research, published by the All-Party Parliamentary Group (APPG) on Refugees, shows Government policies are creating a costly “two-tier system” of refugee protection, with those who entered the country on Government-led resettlement schemes generally provided for, but others often being left homeless and destitute – damaging their prospects of integration. A combination of delays and confusion about important paperwork from Government departments, a “cliff-edge” of support following a positive decision on refugee status and poor English language provision are leading to refugees who want to contribute their skills and talents to the UK facing a number of barriers, the report warned.

It reported “worrying” delays in the issuing of National Insurance numbers — necessary for newly recognised refugees to be able to gain access to finance and housing once their asylum support is ended — which is resulting in newly-recognised refugees becoming destitute. The 28-day period given to asylum seekers after they are successful in their application before the Home Office stops giving them support – known as the “move on” period – is too short, the report found, with the brevity of the move-on period leaving “too many newly recognised refugees homeless and destitute." 

Read more: May Bulman, Independent,

Climate Change, Forced Migration and Human Rights

We tend to see climate change as something that will have serious consequences in the future, rather than as an emergency unfolding before our eyes. Predictions of London being submerged in less than a century briefly gained headlines after a study suggested sea levels would increase several feet over the next 50 years. However, little coverage is given to the dramatic effects of climate change in other countries. What about the disappearing Solomon Islands and other Pacific nations such as Kiribati? What about the Philippines with its deadly “super-typhoons”, Haiti with its world-shattering hurricanes, and Bangladesh’s flooded land? There are many places in the world where countless homes and livelihoods have already been lost due to climate change. Tragically, the countries who bear the worst consequences of climate change tend to be those least responsible for it.

Climate change is already happening and we need to do more to address it right now. Both because of the progressive collapse of our ecosystem, and because of the toll it is taking on human rights. Climate change is fast becoming one of the main causes of forced migration, including the European refugee crisis. There is evidence that climate change has played a big role in the surge of asylum seekers entering the UK and Europe, as well as affecting migratory flows worldwide. According to the UNHCR, the UN Refugee Agency, “displacement linked to climate change is not a future hypothetical – it’s a current reality.” The UNHCR estimate that every year since 2008, an average of 21.5 million people have been forcibly displaced by climate change. They warn that even by the most conservative predictions, up to 250 million people will be displaced by 2050 as a result of extreme weather conditions. Oslo-based Norwegian Refugee Council say that, “every second, one person is displaced by disaster”.

Read more: Rights Info,

Immigration Act 2016 (Consequential Amendments) (Biometrics and Legal Aid) Regulations 2017

My Lords, the statutory instrument before the House makes consequential amendments to two pieces of primary legislation. The first is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, also known as LASPO. The second is the Immigration and Asylum Act 1999. These amendments are necessary for the commencement of the new immigration bail powers under Schedule 10 to the Immigration Act 2016.
LASPO is being amended in respect of access to legal aid for individuals liable to detention. The Immigration and Asylum Act is being amended in respect of the collection of fingerprints from some individuals in connection with the conditions of their immigration bail. The intention behind the amendments is to maintain the status quo for when legal aid may be accessed and when fingerprints may be taken. This statutory instrument is before your Lordships in the context of the commencement of Schedule 10 to the Immigration Act 2016. When commenced, Schedule 10 will create a new status of immigration bail to replace the complex legal framework under the Immigration Act 1971 in respect of individuals liable to immigration detention.

There are currently a total of six legal statuses relating to bail or release for individuals liable to immigration detention under the 1971 Act. It may be useful to noble Lords if I were to list these. They are: temporary admission or release, under paragraph 21 of Schedule 2; bail, under paragraph 22 of Schedule 2; bail, pending appeal, under paragraph 29 of Schedule 2; bail, pending removal, under paragraph 34 of Schedule 2; bail, pending deportation, under paragraph 3 of Schedule 3; and release on restrictions, under paragraphs 2(5) or 4 of Schedule 3.
Under Schedule 10, these six statuses will be simplified to one single status of immigration bail. This statutory instrument makes the necessary amendments to harmonise the legal framework surrounding release from detention, such that it complements the new system that will be introduced upon commencement of Schedule 10. It follows that the reason for this statutory instrument being before the House today is so that commencement of Schedule 10 can progress smoothly. These changes to primary legislation are necessary to enable the new bail regime to function.

The LASPO amendments are being made to ensure that access to legal aid for immigration bail is neither narrowed nor widened following the commencement of Schedule 10. Indeed, when Schedule 10 is commenced, the provisions to which LASPO refers will be repealed. As I have already made clear, this means that changes to LASPO are required. The changes I refer to are in relation to paragraphs 26 and 27 of Schedule 1 and I ?will provide some further detail in this respect. Paragraph 26 provides for a person who is temporarily admitted to the UK to be eligible for legal aid. Paragraph 27 provides for a person who has been released on restrictions to be eligible for legal aid. This statutory instrument amends both those paragraphs to reflect the new legal framework under Schedule 10. We are also inserting a new paragraph 27A into the relevant part of LASPO. This does not represent a change of substance, but is a necessary change in order to ensure that those who are currently eligible for legal aid remain so. I ask noble Lords to note that paragraph 25 of Schedule 1 to LASPO does not need to be changed since it relates to people who are being detained. Those in detention are already eligible for legal aid in respect of bail; the move to immigration bail under Schedule 10 does not change this.

Read more: House of Lords, 24/04/2017,

Question of Whether A Person is Ordinarily Resident in the UK Is One Of Fact And Degree

Capparrelli (EEA Nationals - British Nationality Italy) [2017] UKUT 162 (IAC) (20 January 2017)

[ (i)             An EEA national exercising Treaty rights in the United Kingdom is not "settled" within the compass of section 1(1) of the British Nationality Act 1981 since such person's lawful residence is conditional upon remaining economically active: Gal affirmed.

(ii)           The statutory phrase "the immigration laws" does not encompass the EU rules on free movement: Gal modified.

(iii)         Being ordinarily resident in the United Kingdom does not confer the status of British nationality.

(iv)         The dichotomy of persons lawfully present in the United Kingdom under (a) the EEA Regulations 2006 and (b) the Immigration Rules is reflected in paragraph 5 of the latter.

(v)           The question of whether a person is ordinarily resident in the United Kingdom is one of fact and degree. ]

Decision - Introduction
1.  For convenience I shall employ the appellations "Appellant" and "Respondent" as at first instance.

2. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department ("the Secretary of State") dated 20 August 2015, to make a deportation order in respect of the Appellant. The central question of law which arises is whether the Appellant is a British citizen. If the answer is affirmative, the decision must be adjudged unlawful as it was not made in accordance with the provisions of the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations") whereunder the Appellant enjoys certain protections against deportation.

Second ground of appeal: the EEA Regulations issue

26.           In my judgement, this aspect of the appeal travels nowhere by virtue of the unambiguous - and repeated - findings of the FtT relating to the Appellant's continuous residence in the United Kingdom. These are rehearsed in [8] - [10] above. It is appropriate to observe that this is the issue which the FtT addressed most insistently. The critical finding (repeated) was that the Appellant was continuously resident in the United Kingdom from 1997 to 2010. This was a finding of fact, pure and simple. It is unassailable. Moreover, there is no suggestion that this period of 13 years was punctuated by (in the language of the FtT) any " unlawful break". The second of the permitted grounds of appeal dissolves and thaws to nothing accordingly. In passing, I consider it highly probable that the second ground of appeal overcame the permission threshold by reason of the multiple defects in the application for permission: see [11] - [12] above.

27.           Accordingly, the Appellant qualifies for the highest level of protection against deportation under the regime of the 2006 Regulations. Thus, per Regulation 21(4), the precondition of lawful deportation action against him is " imperative grounds of public security". In making the impugned decision the Secretary of State failed to recognise this, as is clear from [6] - [7] above and, in consequence, erred in law. The decision of the FtT on this issue is unimpeachable. As a result, the FtT's error of law diagnosed in [19] above does not operate to redeem the Secretary of State's decision and is immaterial.

28.           This appeal is dismissed accordingly.
Published on Bailii, 24/04/2017