News & Views Monday 30th September to Sunday 6th October 2019


Continuing Conflicts That Create Refugees - October 2019

Deteriorated Situations: Burkina Faso, Mali, Cameroon, Central African Republic, Somalia, Afghanistan, Indonesia, Venezuela, Haiti, Iran, Saudi Arabia, Algeria, Egypt

Conflict Risk Alerts: Burkina Faso, Democratic Republic of Congo, Malawi, Mozambique, Saudi Arabia, Yemen, Tunisia

Resolution Opportunities: None

In September, U.S. President Trump suspended talks with the Taliban, curtailing prospects for peace in Afghanistan, while an attack on Saudi oil facilities prompted a sharp rise in tensions between Riyadh and Washington on one side and Iran on the other. Cross-border attacks between Saudi Arabia and Yemen’s Huthis could multiply unless they agree on steps to de-escalate. In Egypt and Algeria, security forces cracked down on opposition protests, and Tunisia’s second round of presidential polls could stir tensions. Violence around protests in Indonesia’s Papua left at least 30 dead. Al-Shabaab stepped up attacks in Somalia, violence between armed groups rose in the Central African Republic, security forces increased attacks in Cameroon’s Anglophone areas, and intercommunal conflict deepened in central Mali. In October, insecurity could rise in eastern DR Congo, northern Burkina Faso, Malawi and Mozambique. Talks between Venezuela’s government and opposition fell apart, and Haiti’s political crisis gave way to more violence. In Sudan, the appointment of a new cabinet consolidated a power-sharing deal and imminent talks between the government and armed opposition groups are an opportunity to advance peace in the peripheries.

International Crisis Group:

Asylum Research Consultancy Country of Information Update Vol. 202

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 17th and 30th September 2019.

Read the full report:

Home Office Facing Court Challenge After ‘Corrupt’ Asylum Seeker Policy

The Home Office is to be challenged in court over its practice of inviting foreign government representatives to interview political asylum seekers after The Independent exposed the “corrupt” exercise. It emerged last December that people who had fled political persecution in Zimbabwe and claimed asylum in the UK were ordered by the Home Office to attend meetings where they were asked “distressing” questions by Zimbabwean officials. The move was believed to have been part of an agreement between the two governments that Britain would “repatriate” at least 2,500 failed asylum seekers to Zimbabwe providing that officials from the country could “vet” them beforehand. The Home Office did not deny these allegations.

The High Court has now granted permission for the practice to be challenged in court, with the evidence uncovered by this newspaper forming part of the basis for the challenge. The judge expressed concern about the alleged policy of collaboration with the Zimbabwean authorities and the fact that the Home Office had failed to provide any details about the practice. If successful, the judgement could force the UK government to reconsider the claims of hundreds of failed Zimbabwean asylum seekers who may have been subject to this policy.

Read more: May Bulman, Independent,

Albanian National Extradited to Italy Despite Asylum Claim

It was reported in the media on Monday that the Home Secretary has directed that an Albanian national should be extradited to Italy under a European Arrest Warrant despite having lodged an asylum claim in the UK prior to his removal. Ordinarily an individual cannot be extradited until the final determination of any asylum claim. This is guaranteed under the Extradition Act 2003 by section 39 in European Arrest Warrant cases and section 121 in all other cases. The protection is an essential bar for those who are being targeted with abusive criminal proceedings and for those at risk of persecution on return.

This is the first time that the Home Secretary has used her powers under section 40 of the Extradition Act to issue a certificate removing the usual bar to extradition under section 39. Section 40 empowers the Home Secretary to issue a certificate in two circumstances. Firstly, where the individual is not a national of the requesting state and it has accepted that it is the responsible state to consider the individual’s asylum claim – for example where the claim is to be transferred under the EU Dublin Regulations. Secondly, and as apparently occurred in this case, where the individual is not a national of the requesting state and in the opinion of the Home Secretary, the person’s life and liberty would not be threatened in that territory by reason of his race, religion, nationality, political opinion or membership of a particular social group and the government of the requesting state would not send the person to another country otherwise than in accordance with the Refugee Convention.

The individual in question was facing extradition for offences including participating in an organised crime group and trafficking Albanian women into the EU. He was charged with murder in 2014 after he was involved in a fight in a Milan car park with Selim Lika, a fellow Albanian, who later died of multiple stab wounds. The pair are alleged to have argued over the profits of trafficking Albanian women. Having lost his extradition case at both first instance and on appeal an asylum claim was lodged earlier this year. The Home Secretary subsequently issued a certificate under section 40 thereby opening the door to his removal to Italy.
It is important to note that there is no comparable section under Part 2 of the Act and so this power only applies in European Arrest Warrant cases. Furthermore, a certificate can only be issued in cases where the individual is being sought for extradition by a country other than that of his or her nationality. That being said it is certainly a clear indicator of the hard line approach being taken by the Home Office

Posted by: Gherson Extradition,

G4S Pulls Out of Immigration Sector

The private security company G4S has pulled out of its bid to continue to run the Brook House and Tinsley House immigration removal centres. The company’s management of Brook House has been under close scrutiny after a BBC Panorama broadcast showed an hidden camera video were detainees were mistreated by staff. Various investigations were carried and 15 of the 21 staff involved in the incident have either resigned or been fired. Another independent inquiry is expected to start next year.

G4S will no longer have any involvement in the immigration and asylum sector. The company stopped providing accommodation for asylum seekers in the Midlands, north-east England and Northern Ireland in August. ‘This will allow us to give greater focus to our custody and rehabilitation business, where we operate four of the highest-rated prisons in England and Wales,’ said the company in a statement. According to a recent memorandum from the National Audit Office, the company made £14.3 million gross profit by running Brook House between 2012 and 2018.

Source: Luis Lago, Justice Gap,

Prison Conditions in Afghanistan

ARC Foundation and Garden Court Chambers have published a new report 'Prison Conditions in Afghanistan: A Commentary'.

This report presents country information published between 1 January 2018 and 31 July 2019 on issues of relevance to an assessment of whether prison conditions violate the threshold of Article 3 of the European Convention on Human Rights. The COI research is accompanied by legal notes.

In the absence of any Country Policy and Information Note on Afghanistan's prison conditions, the commentary is intended as a tool to assist legal practitioners and to help ensure that all relevant material is considered by decision-makers.

The August 2018 UNHCR Eligibility Guidelines on Afghanistan find that “applicants may, depending on the individual circumstances of the case, be in need of subsidiary protection under Article 15(a) or Article 15(b) on the grounds that they would face a real risk of the relevant forms of serious harm (death penalty 15 or execution; or torture or inhuman or degrading treatment or punishment), either at the hands of the State or its agents, or at the hands of AGEs [Anti-Government Elements+”.

We are grateful if you could help us disseminate this report widely amongst your contacts and networks. We’d also be extremely grateful for any comments and feedback as to how the report has been used in refugee status determination processes, or beyond. Thank you. Feedback can be left here.

ARC/Garden Court Chambers, September 2019

Brexit - A Recurring Roundabout…

The Home Office has issued a statement clarifying the position on immigration into the UK for EEA citizens in the event of a no-deal Brexit. This follows a previous statement from the Home Office which advised that “
freedom of movement will end” on 31 October 2019 in a no-deal scenario.

The current position is that as of 1 November 2019, EEA citizens will still be able to enter the UK freely, without a visa, and so in theory there will be no change to the process at the port of entry. However, in order to reside and remain in the UK to work, study, be self-employed or self-sufficient, EEA and Swiss nationals will be required to apply under the European Temporary Leave to Remain Scheme (Euro TLR), a status lasting three years.The scheme will not open until confirmation of a ‘no-deal scenario’ and after the UK leaves the EU.

The application will be a simple online process establishing identity, security and criminality checks. Applicants will receive a digital status for three years enabling them to work and rent property during that period. After three years the EEA national will be required to apply under the new points-based immigration rules, which should be introduced in early 2021

This new system is currently under review by the Migration Advisory Committee. In the event of a deal, freedom of movement will continue during a transition period whilst the UK and the EU negotiate a future trading relationship, as things stand currently, EEA nationals should apply for pre-settled or settled status by 30 June 2021.

Read more: Gherson Immigration,

HK/GC/RC v Home Secretary

1. The Appellants are all nationals of Pakistan. They are respectively a mother, father and their minor daughter, born in 2010. Their linked human rights appeals were dismissed by the First-tier Tribunal (Judge Garbett) on the 20 th March 2018. They were granted permission to appeal against that decision on the 22 nd June 2018 by First-tier Tribunal Judge Haria.

2. The Appellants seek leave to remain in the United Kingdom on human rights grounds. The basis of their claim is that the youngest Appellant, R, is suffering from a medical condition for which she would not receive treatment or adequate care in Pakistan. It is submitted that this lack of provision will result in serious consequences for R: she will be denied an education, could face a rapid and irreversible decline in her health and in the worst-case scenario could die. The illness is Type I diabetes mellitus. The family rely on Articles 3 & 8 of the European Convention on Human Rights (ECHR).

The Decision of the First-tier Tribunal
3. The First-tier Tribunal found that the Appellants entered the United Kingdom with leave as Tier 4 Migrants in August 2014, and that this leave continues today by virtue of s3C of the Immigration Act 1971. R was diagnosed in May 2015. The Tribunal accepted as credible all of the evidence it heard from the adult Appellants. The medical evidence in respect of R was unchallenged. The only factual issue between the parties was the availability of care and associated support in Pakistan for R's condition. The Tribunal noted that R's parents had gone to some effort to research what care might be available. This had included evidence from the first Appellant about an acquaintance of hers whose daughter N also suffered from Type I. The doctors treating N in Pakistan had used techniques that were over 50 years old; her condition deteriorated and she had died. The first Appellant's evidence about N was supported by the 'death notes' of her doctor and sworn affidavits from N's parents who set out in more detail what had happened to their daughter. The Appellants had also provided various articles and blogs. The Respondent had produced no country background material on the point.

4. The Tribunal found [at §25] that the treatment for diabetes in Pakistan is more limited than in the United Kingdom; in 2016 the WHO reported that insulin is not widely available, although Metformin and Sulphonylurea are. The Tribunal took judicial notice of the fact that these are drugs used to treat Type II rather than Type I diabetes. Blood glucose measurements are not generally available in primary care settings. The determination then says this: "The fact that they are not "generally available" does not however mean that they are not available at all. I also note that this information is now two years old and the position may have moved on. In oral evidence the first Appellant confirmed that insulin is available privately and that a doctor in a hospital in Lahore specialises in the treatment of Type I diabetes albeit that her techniques and treatment are not as advanced as those [R] currently receives".

5. As to the efficacy of such treatments, and their utility for R, the Tribunal drew a distinction between her position and that of N and her parents [still at §25]:
"In conclusion, I accept that there is a general national unawareness of type I diabetes in Pakistan. I also accept that there is limited availability of insulin, as well as blood sugar testing. However, there is some availability in these Appellants have the advantage, if I can put it that way, of knowing that [R] suffers from this difficult condition which I find distinguishes them from the tragic positions that [N] and her family faced as well..."

6. The Tribunal noted that both of the adult Appellants are educated professionals and that they would be able to work in order to pay privately for treatment. They both speak the language and spent approximately 30 years of their lives in that country. There would be disruption to their lives but upon return to Pakistan they would have the support of family. As to R's education the Tribunal accepted that because of the general lack of awareness of Type I diabetes in Pakistan schools there would not provide the same level of care and support that R currently receives here.

7. Applying these facts as found within the legal framework the Tribunal found, in respect of Article 8:

i) That Article 8 was engaged because there would be an interference with the family's private life here [§35];

ii) It would be in the best interests of R to remain in this country [§36];
iii) The public interest considerations at 117B of the Nationality, Immigration and Asylum Act 2002 must weigh against the Appellants [§37];
iv) Although the family were unaware of R's condition on arrival (and so cannot be deemed 'health tourists') they have not been granted leave to remain on health grounds and so the United Kingdom cannot be said to have taken responsibility for R's care;
v) Weighing these factors in the balance the decision is not disproportionate.
8. In respect of Article 3 the Tribunal directs itself to the high threshold imposed in N v United Kingdom (Application no. 26565/05) (2008) 47 EHRR 39 . The determination notes that the threshold to be applied in the case of a child may be different from that of an adult. The Tribunal was not however satisfied that R's condition has reached such a critical stage that she is dying. Nor did it accept, on the evidence before it, that medical treatment in Pakistan is entirely unavailable in Pakistan such that intense suffering or death on return would be imminent.
9. The appeals were therefore dismissed on all grounds.Conclusion
54. It is therefore the case that whilst the particular insulin that R needs may be available in Pakistan (whether it is, is actually unclear) her parents would in effect be playing with roulette with their daughter's life every time they purchased medication for her. Even if they could find a trusted source, they would be living with the constant stress - or terror - that what they were injecting into their daughter's stomach could in fact kill her. That is a level of anxiety that any parent would recognise as amounting to mental torture. I am quite satisfied that it would meet the 'high threshold' in 276ADE(1)(vi) and render the removal of this family disproportionate.
55. For those reasons I find that the burden of proof in respect of Article 8 has been discharged, and that the appeals should be allowed. It follows that I need not address Article 3.

56. The Appellants' linked appeals turn on the presence in the United Kingdom of R. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I am concerned that identification of the adult Appellants may lead to identification of R and I therefore consider it appropriate to make an order in the following terms:
"Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to, amongst others, both the Appellants and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Decisions and Directions
57. The decision of the First-tier Tribunal is set aside.
58. I remake the decision in the appeal as follows: "the appeal is allowed on human rights grounds".