Opinion Of The Court Delivered By Lord Brodie

In The Appeal Under Section 13 Of The Tribunals, Courts And Enforcement Act 2007
By Jakub Goralczyk (Ap) Appellant

Against A Determination Of The Upper Tribunal (Immigration And Asylum Chamber)

 [1] It is one thing when the state seeks to withdraw a permission or privilege. It is a very different matter when it seeks to interfere with an individual’s rights. Privileges are precarious. In the absence of good reason to the contrary, rights should be secure.

[2] This is an appeal on a point of law with leave of the Upper Tribunal (“UT”) in terms of section 13 of the Tribunals, Courts and Enforcement Act 2007 against a determination of the UT as constituted by Upper Tribunal Judge (“UTJ”) Macleman, dated 23 January 2017. The appellant is Jakub Goralczyk. The respondent is the Secretary of State for the Home Department.

?[31] We see there to have been a complete failure on the part of the FTTJ to engage with the requirements of the 2006 Regulations. That is very clearly an error of law. The FTT’s errors were not corrected by the UT. We shall therefore set aside the decision of the UT in terms of section 14(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Mr Massaro submitted that we should remit to the FTT to allow it to reconsider the matter in the light of the court’s directions and possibly further evidence as to the circumstances of the appellant’s conviction. We are not inclined to do that.

These proceedings have now been going on for quite long enough. The decision appealed against was made on 12 October 2015. Parties have had their opportunity to make their respective cases. Given that the facts are uncontroversial and straightforward and that this is not a matter calling for the exercise of particular expertise we shall remake the FTT’s decision in terms of section 14(2)(b)(ii). In our opinion the high threshold for the deportation of an EU national is not met in this case.

The appellant’s conduct, as disclosed by his history of offending, is in no way to his credit but what the relevant provisions of the Regulations look to is likely future conduct.

 Past conduct has a bearing on that, but not just any risk will do. It must be such as to pose a genuine, present and sufficiently serious threat.

That cannot be said to be the case here. The only available structured risk assessment indicates that the appellant presents a low risk of reoffending. That the regulation 21(5)(c) criterion is not met is sufficient for the purposes of our decision but in addition, in the circumstances of this case we do not see a decision to remove the appellant from the United Kingdom to be compliant with the principle of proportionality. We shall allow the appellant’s appeal from the respondent’s decision.

The result is that the appellant is not subject to a deportation order. We shall find the respondent liable to the appellant for his expenses in relation to the appeal.

Read the full opinion, https://is.gd/stGrn3

Asked by Chris Stephens: To ask the Secretary of State for the Home Department, what discussions his Department have had with Serco on recent reports of the eviction of asylum seekers from their allocated properties; and if he will make a statement.

Answered by: Caroline Nokes: The Home Office currently provides accommodation to asylum seekers who would otherwise be destitute, until their asylum claim is fully determined or where they have a practical or legal obstacle that temporarily prevents them leaving the UK.

The individuals who are subject to the proposed lock change notices in Scotland are those who have no right to accommodation, have had their asylum claims determined and, where relevant, upheld by the courts.

Home Office officials are in regular contact with our accommodation providers as part of our day to day management of the accommodation contracts.

In relation to the issuing of lock change notices there have been a number of meetings between senior officials, Serco and relevant stakeholders to address this issue, with a protocol agreed with partners in Glasgow City Council around how such cases are managed.

In addition, following a productive series of meetings over recent weeks my officials and representatives from Serco form part of a Task Force chaired by Glasgow City Council which is committed to reviewing the cases identified by Serco that may no longer be entitled to Home Office support to ensure they are managed appropriately.

House of Commons, 06/09/2018, https://is.gd/HXBWiR

1.1 Basis of claim

1.1.1 Fear of persecution or serious harm by state or non-state actors due to a person’s Kurdish ethnicity.

1.2 Points to note

1.2.1 For analysis of claims made on the basis of membership of, or association with, the Partiya Karkerên Kurdistanê or Kurdish Workers’ Party (PKK) see Country Policy and Information Note on Turkey: Kurdistan Worker's Party
(PKK).

1.2.2 For analysis of claims made on the basis of membership of, or association with, Kurdish political parties, see Country Policy and Information Note on Kurdish political parties.

Published on Refworld, 12/09/2018
http://www.refworld.org/docid/5b9927db4.html

• such deprivation is conducive to the public good (section 40(2))
• the individual has acted in a manner seriously prejudicial to the vital interests of the UK ( section 4A));

Under Section 40(3) of the British Nationality Act, the Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that citizenship was obtained by means of fraud, false representation or concealment of a material fact
When seeking to deprive on the basis that to do so is conducive to the public good, the law requires that this action proceed only if the individual concerned would not be left stateless, unless action is taken under the specific provisions in 4A,. In that case, deprivation will only occur if the person is able, under the laws of another country, to obtain another citizenship. No such requirements exist in cases where the citizenship was obtained fraudulently.  [167155]

The case is a landmark challenge to the detention centre pay regime, first introduced in 2008. In 2016/2017, over 880,000 hours of paid work was carried out by immigration detainees. The vast majority of this work was rewarded with £1 per hour pay (as the ‘specified project’ rate of £1.25 is rarely used).

A wide range of jobs are being carried out within immigration detention centres including a cleaner, kitchen assistant, barber, gym assistant, interpreter and library assistant. These roles are of critical importance to the maintenance of the detention estate. Our clients work up to 30 hours per week in order to raise funds for essential toiletries, phone credit and even to send money home to their families. They feel exploited having to do such essential roles for only £1 per hour, with no possibility of a raise in pay. Without our clients carrying out this work, it would have to be done by external employees at national minimum wage rates.

Immigration detainees are exempt from the National Minimum Wage legislation and it is the Secretary of State for the Home Department’s discretion to set rates of pay. We are challenging the decision to set it at a maximum singular rate of £1 per hour and the failure to increase this rate (or properly review this rate) since 2008. Whilst prisoners are often paid less than immigration detainees, prisoner pay is a devolved matter for each Prison Governor. Detention centre providers have expressed a desire to increase pay for detainees.

Following our Pre Action letter submitted in May 2017, the Home Office conducted a full review of immigration removal centre pay. This review recommended increasing pay by inflation to £1.15 per hour. However, even this modest increase was rejected by the Secretary of State for the Home Department.

Read more: Duncan Lewis, https://is.gd/ZtCFjI

Before the Immigration Rules changed in 2012, international students were able to apply for additional leave to remain in the UK as Post Study Workers after the completion of their studies. Under the current regulations, once the course of study has been completed, the students are required to leave the UK, unless they manage to secure a formal immigration status through an alternative visa route under the Immigration Rules. 

Tier 2 visas for skilled workers are an option for recent graduates. However, the threshold on how much the recent graduate must be earning, along with the time limits for moving into work and requirements for sponsorship are considered to be too demanding and universities are looking for a less restricted approach. 

It has been suggested that the UK is “missing out” on the global growth in overseas students. The number of international students coming to the UK has increased by only 3% in the past decade. Meanwhile, the number of international students has increased by 40% in USA, by 54% in Australia and 57% in Canada. The USA, Australia and Canada are known for allowing international students to work after graduation and therefore their educational institutions are more attractive for prospective students. 

Universities UK say that overseas students are worth over £25 billion to the UK economy. The spending of overseas students supports more than 200,000 jobs, with an economic impact, across fees, travel and living cost worth approximately £25.8 billion, including £1 billion in tax revenues. 

A Home Office spokeswoman said: “We recognise the cultural and financial contribution which international students make to the UK, which is why we have developed an excellent post-study offer…Graduates can stay if they get a graduate level job, get an internship or apply to set up a business in the UK…Completing PhD students are also able to stay for an additional year to gain work experience or set up as an entrepreneur”.

Universities UK is however calling for changes to the UK visa system to allow international students to stay and work for at least two years after they graduate.  

Posted by: Gherson Immigration, https://is.gd/qA0u0d

Home Office management information indicates that 104 pregnant women  were detained in the immigration detention estate between 12 July 2016 and 30 June  2018. Of these women, 20 were removed from the UK directly from detention.
[168114]