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

Woman Accused of Faking Illness to Avoid UK Deportation Died Five Days Later

A South African woman who collapsed during an attempted removal from the UK was accused by immigration officials of faking illness to avoid being put on a plane but died five days later, the Guardian can reveal. The Home Office has referred the case of Nancy Motsamai, 35, who died on 12 March, to the independent prisons and probation ombudsman for investigation.

Her husband, Fusi Motsamai, also 35, has condemned the Home Office’s treatment of his wife. He also said: “We repeatedly asked the Home Office to release Nancy’s passport to allow her body to be transported to her home country for burial but they did not.” His distress was compounded when the Home Office sent a text to his wife’s phone on 30 March, more than two weeks after her death, warning her of penalties if she did not attend an appointment at a Home Office reporting centre on 5 April.

The Home Office has confirmed that the text was sent after they were notified about Motsamai’s death and said it was “working urgently” to pass her passport on to the South African authorities. A spokesman said the texting error was caused by an automated system that had not been updated.

Read more: Diane Taylor, Guardian,

Man Living in UK For 56 Years Loses Job Over Immigration Papers

An experienced special needs teaching assistant lost his job after his employers ruled that he was an illegal immigrant, despite the fact he has lived in the UK for more than 50 years. Michael Braithwaite, who arrived in Britain from Barbados in 1961, had worked at a north London primary school for over 15 years when a routine check on his immigration status revealed he did not have an up-to-date identity document.

The personnel department got in touch to tell him that without a biometric card he could not continue to be employed. The 66-year-old lost his full-time job in 2017 after the local authority ruled he needed to submit documentary proof that he had the right to live in the UK. He has been trying for two years without success to get the Home Office to acknowledge that he is in Britain legally.

The unexpected immigration difficulties have pushed him close to a mental breakdown. “It made me feel like I was an alien. I almost fell apart with the stress,” he said

Braithwaite arrived in London with his family when he was nine, when his father moved to work for the Post Office, and he has lived in the UK since. He had always assumed he was British, having attended primary school and secondary school here, and having worked continuously since leaving school. He married in London and has three British children and five grandchildren.

Read more: Amelia Gentleman, Guardian,

CCRC Refers Convictions of Seven People Convicted of Travel Document Offences to Court of Appeal

The Criminal Cases Review Commission (CCRC) has referred for appeal the travel document offences of seven individuals. All seven arrived in the UK without passports and were charged with failing to produce an immigration document contrary section 2(1) of the Asylum and Immigration (treatment of claimants) Act 2004). They had arrived from various countries including Iran, Iraq, Pakistan Syria, and Zimbabwe.

All were advised by legal aid lawyers to plead guilty in the magistrates’ court and each was sent to prison for a few months. All have since been granted leave to remain in the UK.

Because they pleaded guilty in the magistrates’ court, they have no right of appeal and all applied to the CCRC to contest their convictions
Having considered these cases, the Commission has decided to refer them for appeal at the Crown Court. The referrals are made on the basis that the applicants could not have made an informed choice as to plea because the legal advice they each received was incorrect and they should have been advised that they were entitled to rely on the statutory defence available under section 2 of the Asylum and Immigration (Treatment of Claimants) etc. Act 2004; namely that he had a reasonable excuse for not having a travel document.

The Commission therefore considers there is a real possibility that the relevant Crown Court will in each case conclude that, in all the circumstances, it should allow the applicant to vacate his guilty plea on the basis that he was deprived of a defence that was likely to have succeeded.

In light of the circumstances of their arrival and seeking asylum in the UK, the Commission has agreed to conceal the identities of the applicants who did not wish their names to be made public. Therefore the six anonymous referrals will be being recorded by the Commission as individuals B,C,D,E, F and G. The seventh applicant whose cases has been referred is Mr Elvis Bhebe, who arrived in the UK in August 2005.

These cases are among a number involving asylum seekers and refugees that the Commission has referred to the appeal courts in recent months. Several other cases raising similar issues are currently being investigated by the Commission.

CCRC Concern Over Advice Given to Refugees
Circa 2012,

UK Migration Rules Make Children Homeless

For two years we have been investigating how Sheffield treats refugee families who have no recourse to public funds. Our latest article exposes the dire state of temporary housing for mothers with young children, forced to share hostels with vulnerable homeless men.

Across the UK councils are forcing children into homelessness and destitution simply because of the migration status of their parents. This problem is compounded by the housing crisis, which is hurting the poorest most.

Sheffield City Council, the scene of our work, placed 43 homeless families with 97 children in bed and breakfast accommodation in the 11 months to 30 November 2017, according to an FOI we submitted. Some of them had been placed in B&Bs more than once, and some for many weeks. Of the 97 children, 40 were under five years old.

Violet Dickenson and John Grayson, Open Democracy,

Young Asylum Seekers ‘Face Blanket Study Ban’

Young asylum seekers who arrived in the UK as children are being banned from study “as a matter of course” according to campaigners, despite government assurances there would be no “blanket ban” on education. From January 2018, legal changes mean that anyone claiming asylum is considered to be on “immigration bail” – restrictions that the Home Office applies to asylum seekers until their application to remain in the UK is decided.

The restrictions were previously limited to not working, living at a specified address, or reporting to the police or Home Office. Yet “significant numbers” of young refugees have been told in the last few weeks that they are also not allowed to study – just weeks before some had been due to take important exams in some cases. Some asylum seekers have only discovered they are under a study ban after charity workers examined their new paperwork and noticed that a box had been ticked.

“The Home Office are simply issuing new paperwork without explaining that changes have been made,” said Hannah Baynes, a solicitor with Duncan Lewis. “That means that if people do not notice and keep studying then they are in danger of breaching their bail conditions.” Those breaches can lead to asylum appeals being rejected, she said.

Read more: Maeve McClenaghan, The Observer,

CPIN Afghanistan: Unaccompanied Children

Basis of claim

1.1.1 Fear of persecution or serious harm as an unaccompanied child by state actors, anti-government elements (AGEs), or by wider society due to their  vulnerability as a minor without adult male support.

1.2 Points to note

1.2.1 Full consideration of the child’s asylum claim must take place before consideration is given to any other forms of leave.

1.2.2 A decision on whether a child faces a risk of serious harm or persecution should be based on their individual circumstances and the country situation at the time of the decision.

Published on Refworld, 10/04/2018

 An unaccompanied minor who attains the age of majority during the asylum procedure retains their right to family unification

Such an application for family reunification must however be made within a reasonable time, in principle within three months of the date on which the minor concerned is recognised as having refugee status

Judgment in Case C-550/16 A and S v Staatssecretaris van Veiligheid en Justitie

European Court of Justice, 12/04/2018

Help For Stateless People in the UK

Even in countries that have a statelessness determination procedure, there are numerous barriers that prevent stateless people from accessing protection, support and, eventually, nationality. A stateless person often won’t know how to find out about laws, policies, procedures, or resources that apply to them. The laws and policies may be very confusing, and the Government bureaucracy may be overwhelming. Stateless people may get incorrect information from well-meaning friends or acquaintances. They may have no idea where to find a qualified lawyer who can adequately advise and represent them.

Asylum Aid’s new website for stateless people in the UK seeks to overcome this. Our site is designed to provide stateless people, community groups, and others with explanations of relevant laws and procedures and points them to helpful resources. The site is easy to use on a desktop, laptop or mobile device and is available in English, Arabic, and French.

Source: Asylum Aid,

An Overview of Immigration Bail and Detention

A new regime for immigration bail came into force in the UK earlier this year, marking a significant expansion of already extensive immigration detention powers. It was brought in under the Immigration Act 2016 and implemented by the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017, which came into force on 15 January 2018.

The overhaul comes at a time of increasing concern surrounding the use of prolonged, often indefinite detention of migrants in the UK. Some are unable to maintain their status for a variety of reasons or simply lack specific evidence to show or establish lawful immigration status in the UK. However from a quick look at the new rules, it is difficult to see how such concerns will be put to rest any time soon.

Detainees are more likely to get bail if they can demonstrate that they have a place to stay and that they have at least one ‘Financial Condition Supporter’ who will attend the necessary hearings on the detainee’s behalf and guarantee payment of any financial penalties on their behalf if bail conditions are not complied with.
Immigration bail is not guaranteed, and detainees will find it harder to be granted bail conditions if they have a criminal record, if they have previously breached bail conditions or if their removal date is within 14 days of a bail application. 

Read more: Gherson Immigration,

Rights Groups Decry Theresa May's 'Hostile Environment' Immigration Policy

Human rights groups have published a report laying bare the extent to which the government’s “hostile environment” immigration policies have spread into all areas of UK life, encouraging “discriminatory” and “racist” behaviour. The report, (argues border controls are embedded in UK society and that all sectors must refuse to participate) by Liberty, the National Union of Students and the Migrants Rights Network, among others, shows immigration controls are embedded at the heart of the UK’s public services, and that they:
  • Encourage discrimination against black and ethnic minority (BAME) and visibly “foreign” people.
  • Disproportionately affect young people, homeless people and those on lower incomes, who are less likely to have a passport or other form of ID.
  • Shatter the carefully cultivated relationships of trust between public servants and those they serve.
  • Prevent frontline workers from supporting people they know are in dire need, while burdening them with complex immigration-related tasks.

This approach of government-sponsored hostility to migrants was spearheaded by Theresa May during her time as home secretary and largely enforced through the 2014 and 2016 Immigration Acts. The government now requires employers, landlords, private sector workers, NHS staff and other public servants – often unwillingly – to check a person’s status before they can offer them a job, housing, healthcare or other support, the report says. The report outlines several ways that people working across all sectors in the UK can help diminish the behaviour, saying: “The government’s attempt to create a hostile environment is dependent on the willing participation of people across society – but that will also be its downfall.

“For as long as we refuse to participate, we can fight the government’s attempts to turn us into border guards. We can fight for a country that guarantees people’s human rights, whoever they are and wherever they come from.”

Diane Taylor, Guardian,

Zambrano Revisited by the Court Of Appeal

The Court of Appeal ruled on 3 conjoined cases in December 2017 where the key question was whether the Zambrano principle had been extended by the CJEU decision of Chavez - Vilchez. Case C-133/15 which found that a third-country national may, as the parent of a minor child who is an EU citizen, rely on a derived right of residence in the EU.

The Court ruled that there was no such extension and whilst the consideration of respect for family life was a relevant factor, it did not lead to a conclusion that residency rights were a given. The matter  remains one of compulsion. 

In the case of Patel, Shah &  Bourouisa EWCA Civ 2028 [2017]  , they highlighted that the Zambrano principle cannot be regarded as a back door route to residency by non EU citizen parents who otherwise do not meet the requirements of the Immigration rules [74 - 76] 

The correct approach, in a case involving a British citizen child, is to ask whether the situation of the child is such that, if the non-EU citizen parent left the EU, the British citizen would be unable to care for the child, so that the child would be compelled to leave (para 77). While consideration of respect for family life was a relevant factor, it could not result in an automatic conclusion that residency should be permitted as a result of  the  child being compelled to leave because family life would be diminished by the departure of one parent (para 78) : I would wish to emphasise that consideration of the respect for family life (whether considered under Article 8 ECHR or Article 7 of the Charter), although a relevant factor, cannot be a trump card enabling a court or tribunal to conclude that a child will be compelled to leave because Article 8 (or Article 7) are engaged and family life will be diminished by the departure of one parent. Family life will be diminished by the departure of one parent in the great majority of cases. The question remains whether, all things considered, the departure of the parent will mean the child is compelled to follow. 

It concluded that where the British parent was capable of looking after the child, there was no proper basis for a finding of compulsion (para 79). 

Read more: McGill & Co,

Mothers and Children Unlawfully Housed in Sheffield B&Bs For Years

Mothers with young children have spent months on end in Bed & Breakfast accommodation in Sheffield, South Yorkshire, living alongside vulnerable homeless single men. Women forced to share bathrooms and kitchens with men they don’t know tell us they’ve faced intimidation and racist abuse. They say they fear for themselves and their children.

Councils are obliged by law to avoid placing pregnant women or families with children in B&Bs except as a last resort, and then for no longer than six weeks. But we at South Yorkshire Migration & Asylum Action Group (SYMAAG) know of women and children housed unlawfully in potentially dangerous B&B accommodation for months, and some for years.

At a B&B on Grimesthorpe Road, Sheffield, mothers with children have been housed alongside vulnerable homeless single men.

Called Earl Marshall Guest House, the B&B is in Burngreave, to the north of the city, which has housed incoming migrants, workers in the steel industry, over the last sixty years, people from Yemen, Kurdistan, Pakistan. And in recent years from Central and Eastern Europe. The steel industry has almost disappeared and Burngreave, with its streets of redbrick terraced housing, is one of Sheffield’s poorest districts.

Violet Dickenson and John Grayson, Open Democracy,

When a EU Citizen Returns to his Member State Of Origin With A Non-EU Partner

Where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the citizen’s non-EU partner with whom he has created or strengthened family ties in another Member State

The requirement to facilitate does not confer an automatic residence right but does require the  Member State to undertake an extensive examination of the personal circumstances of the non-EU  citizen and justify any refusal of entry or residence

Advocate General’s Opinion in Case C-89/17
Court of Justice of the European Union

Asylum Research Consultancy (ARC) COI Update Vol. 168

This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 28 March and 10 April 2018.