News & Views Monday 9th July to Sunday 15th July 2018  

Home Office Ordered to Pay £50,000 After Child Separated From Father

The Home Office has agreed to pay £50,000 compensation after a three-year-old girl was left in care while her father was unlawfully placed in immigration detention. At the high court on Wednesday 11/07/2018, the Home Office admitted that the detention of the father was unlawful as it breached both the department’s own policies and the father and daughter’s right to family life, under European law. The court heard that the father, an Indian related to an EU national, was placed in immigration detention after serving a 20-month prison sentence for unlawful wounding.

The local authority where he had been living did not believe the child’s mother was capable of looking her and said it was in the child’s best interests to be raised by her father.  The family court ordered that it was in the best interests of the girl, known at court as AJU, that she be reunited with her father, AJS. The court also warned that if this did not happen, the girl would have to be placed for adoption. Despite this, the Home Office moved AJS to an immigration centre in Dorset, hundreds of miles from the place where his daughter was in care. He was released after three months in immigration detention, just days before his daughter was due to be placed for adoption.

Read more: Ian Cobain, Guardian,

Early Day Motion 1499: Targeted Murder of Afghan Sikhs

That this House notes with sadness the targeted murder of at least 19 people, mostly Sikhs, on 1 July 2018 in the Afghan city of Jalalabad; acknowledges that the suicide bombing murdered the majority of Afghanistan's Sikh community leaders, including Mr Avtar Singh Khalsa the only Sikh candidate for Parliament; recognises that the Sikh community in Afghanistan, along with other religious minorities, are under sustained assault by a government uninterested in them and a significant minority of the population who want to see them gone; notes that many members of the Afghan Sikh community have come to the UK to seek safety and have joined the large UK Sikh population centred on West London; asks the Secretary of State for Foreign and Commonwealth Affairs to meet representatives of the Sikh community in the UK to update them on the work the Government is doing; and calls for the Government to work with the international community to offer support and security to the persecuted minorities of Afghanistan.

House of Commons, 10/07/2018,

Amendments to EEA Immigration Regulations, Allow Dual British Nationals to Rely on Their EEA Nationality

Parliament has made changes to EEA Immigration regulations, which transpose EEA free movement rights into UK law, in order to give effect to certain judgments of the Court of Justice of the EU (CJEU). Arguably the most significant change in the regulations is the newly added provision that a national of an EEA State who is also a British citizen, where British citizenship was acquired after the EEA citizenship and after treaty rights had been exercised in the UK, may continue to be treated as an EEA national. It is important to note, however, that if the EEA State of which a person is a national becomes a member State after that person acquired British citizenship then this provision does not apply.
For example, if you initially came to the UK as a European citizen worker and obtained permanent residence and thereafter British nationality, the regulations will continue to treat you as an EEA national as long as you were a qualified person at the time of the acquisition of British citizenship and you continue to satisfy the requirements, i.e. have not at any time subsequent to the acquisition lost the status of qualified person. Until recently the UK Government took the position that the family members of dual citizens cannot benefit from EU free movement rights. This meant that any non-EEA family members would lose their right of residence in the UK, if their EEA sponsor obtained British citizenship.

The question of whether a dual European and British national could exercise their EEA treaty rights in the UK has been going back and forth for many years. The Government’s initial position when the EEA regulations first came into force in 2006 was that the family member of a dual national may exercise free movement rights. However, the 2011 case of McCarthy v SSHD C-434/09 revised this policy when a British national, having obtained an Irish passport, attempted to transfer her EEA free movement rights to her Jamaican husband. The Home Office did not allow this and the European Court of Justice upheld this decision. The case caused a change in policy and this subsequently led to a decline in naturalisation applications by EEA nationals.

However, last year’s case of Lounes v SSHD C-165/16 changed this policy again. It concerned an EEA national who, having arrived in the UK, obtained permanent residency after exercising her treaty rights and then British citizenship, and who wanted to transfer her free movement rights to her spouse. The Home Office initially refused this application, but the European Court of Justice determined that this was not compatible with EU law and clarified that when an EEA national has exercised their treaty rights in the UK and has subsequently naturalised as a British citizen, the dual EEA national will be treated the same and their treaty rights could be transferred to their non-EEA family member, as long as they satisfy the other requirements of the EEA regulations.

The amendments to the regulations will now ensure that this becomes law. It is an important amendment also in light of Brexit, as many EEA nationals may opt to become British and will be reassured that their non-EEA family members will be allowed to make use of their free movement rights subsequently. The Regulations will come into force on 24 July 2018.

Read more: Gherson Immigration,

Millions Denied Citizenship Due to Ideas of National, Ethnic or Racial ‘Purity’

Ideologies which define nationality as being determined by ethnicity or bloodline are denying millions of people of their right to citizenship, a UN expert has charged. E. Tendayi Achiume, Special Rapporteur on racism, focused on the issue of ethno-nationalism in her first report to the Human Rights Council in Geneva, whose current session ends on Friday In it, she highlighted the plight of millions of stateless people worldwide—often members of minority groups—who ar victims of long-standing discrimination which sees them as “foreign”, even though they have been resident in a country for generations or even centuries.

Meanwhile, several countries continue to enforce “patriarchal laws” which make it impossible for women to pass down citizenship status to their children or foreign-born spouse. In some cases, women are even stripped of their nationality upon marrying a foreigner and cannot regain it if the marriage ends. “This is gender-based discrimination often deployed by States to preserve notions of national, ethnic and racial ‘purity,’” she said. Ms. Achiume believes prejudice rooted in ethno-nationalism is behind racial discrimination, whether in citizenship or immigration laws. She recalled that in the past, European colonial powers used the ideology to exclude local populations within colonies from gaining citizenship, while Jews and Roma were targeted on the same grounds, in the 19th and 20th centuries.|

Read more: UN News,

European States Must Put Human Rights at the Centre of Their Migration Policies
“European states’ current approach to the arrivals of refugees and migrants has transformed a manageable issue into an extremely divisive topic, in particular within EU member states. And it has caused immense suffering and hardship to thousands of people who sought our protection. It is time that European states put the human rights of migrants, asylum seekers and refugees, as well as the principle of responsibility sharing, at the centre of their migration and asylum policies.” said the Council of Europe Commissioner for Human Rights, Dunja Mijatovi?, in a statement she released today. “Whilst states have the right to control their borders and ensure security, this cannot come at the expense of human rights. The recent adoption of European Council conclusions, as well as decisions at national levels, raise a number of concerns that European states must address in order to meet the obligations under international human rights law which they have undertaken to respect.

First of all, any approach to migration in the Mediterranean should ensure a sufficiently resourced and fully operational system for saving human lives at sea. Recent tragedies resulting in hundreds of lost lives should remind us of the urgency to act. In this context, non-governmental organisations (NGOs) play a crucial role and should be free to use ports and other facilities for rescue operations and for helping migrants. Regrettably, a number of Council of Europe member states are hindering the work of NGOs, which imperils the lives of many people. When member states coordinate rescue operations they should make full use of the available search and rescue capacities, including that of NGO vessels. Coordinating authorities should ensure instructions given in the course of rescue operations fully respect the human rights of rescued migrants, including by preventing them from being put in situations where their right to life would be threatened, or where they would be subjected to torture, inhuman or degrading treatment, or to arbitrary deprivation of their liberty.

Read more: Council of Europe,

Immigration – Protection for Migrant Workers Engaging In Legal Strike Action

The Secretary of State for the Home Department (Sajid Javid)
Following a recent strike by university lecturers, a number of hon. Members have raised concerns about the position of migrant workers who engage in legal strike action and whether this affects their immigration status.

It is not the Government’s policy to prevent migrant workers from engaging in legal strike action and, to date, I am not aware of any case where a migrant worker has had their leave curtailed, or been removed, as a result of having engaged in legal industrial action. However, to put the matter beyond doubt, I will be making changes to the guidance and immigration rules for migrant workers (under the tier 2 and 5 immigration routes) and their sponsors.

The specific change will add legal strike action to the list of exceptions to the rule on absences from employment without pay for migrant workers. It will make it clear that there will be no immigration consequences for any migrant worker who takes part in legal strike action in the same way that a migrant worker is not disadvantaged if they take maternity or paternity leave.

This will ensure that non-EEA migrants can take part in legal industrial action along with their British and European colleagues.

The changes to the sponsor guidance will be made shortly and amendments to the immigration rules will be made at the next available opportunity in the autumn.


Family Separations Actions Not Confined to the US

On the back of recent immigration scandals in the US concerning the separation of children from their families and the release of images of imprisoned children crying for their parents, it has been reported by the organisation Bail For Immigration Detainees (“BID”) that UK migration authorities have also caused family separation by placing parents in immigration detention. Although the UK’s Home Office regulations state that children are neither to be split from both their parents nor placed in detention for immigration purposes, and whilst the Home Office does not release statistics on the number of parents in UK immigration detention, BID has stated that the organisation is dealing with approximately 170 cases of families being split up because of immigration enforcement each year.

In a study published in 2013, BID reviewed the cases of 111 parents who had been separated from 200 children over a three-year period. The average period of detention had been 270 days. Almost half the 200 children were placed in foster or local authority care during their parents’ detention. In 92 cases, the parent was eventually released. In 15 cases, however, the parent was deported or removed from the UK without their child. In a subsequent study conducted the following year, 2014, BID studied a sample of 47 immigration detainees, and found that 11 were removed or deported without their children. BID legal manager, Mr Nicholas Beales, has stated that the separations are a result of children generally being asked to remain with another guardian when a parent or both parents are taken into detention. Mr Beales has also stated that in less than two years BID has dealt with several cases in which enforcement action by the Home Office has meant children being taken into care as there is simply nobody else to take care of them while their parents are in detention.

Shockingly, BID claims that parents are often taken away very suddenly, with no indication given as to when they will be released. Furthermore, once in detention, the parents face removal back to their country of origin, leaving the children in the UK alone. The potential consequences are obviously devastating. The UK Government’s guidance clearly states that children must not be separated from both parents for immigration purposes, and sets out that the decision to detain any parent should be “necessary and proportionate” with regard to any children concerned.

A Home Office spokesperson has reportedly stated that immigration procedures would not result in children being taken into care except in the most exceptional circumstances, and said that a child’s safety and welfare were at the heart of the policy on family returns. BID argues, however, that following this guidance amounts to “little more than a tick box exercise” and says the government is putting individuals in detention with little consideration for the impact on children and that the system needs to change to provide more certainty on how the policy of immigration detention in such cases operates.

Posted by: Gherson Immigration,

Misery as Strategy: The Human Cost of Conflict

From Syria to Yemen, from South Sudan to Venezuela, war and political crisis are causing human anguish on a scale unseen in a generation. That conflict and crisis take a high human toll is hardly new, of course. Yet the scope of suffering today is striking. The number of people displaced globally by conflict and persecution stood at 65.6 million at the end of 2016, the greatest number since World War II. Figures released earlier this month show that there were 11.8 million new internal displacements in 2017, nearly double the 6.9 million in 2016. The number of people facing acute hunger globally due largely to conflict and instability reached almost 74 million across eighteen countries in 2017. The trend is clear: war and crisis are destroying more lives and livelihoods, pushing more people toward starvation and driving more people from their homes.

So, what is happening? First is simply that the last decade has seen an increase in conflict and political violence. While data and definitions vary, and data deficiencies and gaps exist, studies generally point to upward trends.

But deepening human misery comes not only from more war and violence. It also comes from the manner in which many actors – whether leaders, governments or non-state armed groups – are pursuing military and political objectives. Too often these actors gain from human deprivation. Sometimes they deliberately inflict pain on civilians, attacking, forcibly displacing or otherwise controlling populations, including by determining whether, where and how they get access to aid. At other times, they use heavy-handed military or political tactics without attention to the enormous suffering they are causing.

In wars, these patterns track broadly with violations of the fundamental principles, under international humanitarian law (IHL), of distinction between civilians and combatants, and of proportionality in carrying out attacks. Whether observance of IHL has in fact declined in recent years is difficult to measure and subject to debate. What is clear is that many of today’s conflicts – certainly major wars but also lower-intensity armed conflicts – have seen shocking and repeated violations of the rules that are meant to protect civilians in war.

Read more: IRIN,

SSHD v Rozanne Banger (Freedom of Movement)

 (Reference for a preliminary ruling — Citizenship of the European Union — Article 21 TFEU — Right of Union citizens to move and reside freely within the territory of the European Union — Directive 2004/38/EC — Point (b) of the first subparagraph of Article 3(2) — Partner with whom the Union citizen has a duly-attested durable relationship — Return to the Member State of which the Union citizen is a national — Application for residence authorisation — Extensive examination of the applicant’s personal circumstances — Articles 15 and 31 — Effective judicial protection — Charter of Fundamental Rights of the European Union — Article 47)

On those grounds, the Court (Fourth Chamber) hereby rules:

1. Article 21(1) TFEU must be interpreted as requiring the Member State of which a Union citizen is a national to facilitate the provision of a residence authorisation to the unregistered partner, a third-country national with whom that Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, returns with his partner to the Member State of which he is a national in order to reside there.

2. Article 21(1) TFEU must be interpreted as meaning that a decision to refuse a residence authorisation to the third country national and unregistered partner of a Union citizen, where that Union citizen, having exercised his right of freedom of movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38, returns with his partner to the Member State of which he is a national in order to reside there, must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons.

3. Article 3(2) of Directive 2004/38 must be interpreted as meaning that the third-country nationals envisaged in that provision must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.

European Court of Justice