News & Views Monday 4th November to Sunday 10th November 2019


Continuing Conflicts That Create Refugees - November 2019

Deteriorated Situations: Burkina, Faso, Burundi, Ethiopia, Mozambique, Guinea, Guinea-Bissau, North Macedonia, Bolivia, Chile, Ecuador, Mexico, Lebanon, Syria, Iraq, Libya

Conflict Risk Alerts: Democratic Republic of Congo, South Sudan, Guinea-Bissau, Syria, Iraq

In October, Turkey launched a major offensive against Kurdish-led forces in Syria's north east and, though fighting eased mid-month, it could escalate again in coming weeks. In Libya, Field Marshal Khalifa Haftar stepped up airstrikes on forces allied to the UN-backed government and civilian targets.

The Yemeni government and southern separatists have a precious opportunity in November to strike a deal and stem hostilities in the south. Political protests paralysed Lebanon and led to deadly violence in Iraq, Ethiopia and Guinea, as well as in the Andes region in Bolivia, Chile and Ecuador.

Mexico's government faced a political crisis following a series of high-profile violent incidents.

The European Council's widely-criticised decision not to open formal accession talks was a setback for North Macedonia. Sudan's government and armed groups made headway in talks. In contrast, South Sudan's peace deal could collapse and violence resume if President Salva Kiir makes good on his pledge to form a government by 12 November despite objections by rebel leader Riek Machar. Tensions rose in Mozambique as the opposition rejected election results and fighting intensified in the north.

Security in both northern Burkina Faso and western Burundi deteriorated, and violence could escalate in eastern DR Congo as the army ramps up its new offensive against armed groups. Guinea-Bissau faced new instability as President José Mário Vaz dissolved the government, raising the risk of protests and violent repression by security forces around November's presidential polls.

Escaped Tamil Prisoners at Risk in Sri Lanka, Court Of Appeal Confirms

The Court of Appeal has overruled both immigration tribunals and found that members of the Tamil Tigers who were detained but escaped are at risk of persecution in Sri Lanka. The judgment in RS (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1796 betrays the court's surprise that neither tribunal reached this fairly obvious conclusion. The decision is supported by a wealth of country information and expert evidence to confirm that, just as in the UK, if someone escapes from custody in Sri Lanka a warrant will be issued for their arrest and they will be arrested when they re-enter the country.

RS had been a member of the Liberation Tigers of Tamil Eelam, a Tamil separatist organisation, from 1995 to 2009 and worked in the finance division in a logistics role. He was captured, detained and tortured by the Sri Lankan army in 2009. RS escaped from custody in December 2010 by concealing himself in a cesspit.

In GJ and others (post-civil war returnees) Sri Lanka [2013] UKUT 319 (IAC), the Upper Tribunal held that there would be a risk of persecution in Sri Lanka for: A person whose name appears on a computerised "stop" list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a "stop" list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

Read more: Freemovement,

Mr SASS v Home Secretary

 Decision And Reasons

1. In this decision the Respondent is referred to as the Claimant and the Appellant is referred to as the Secretary of State.

2. The Claimant a national of Egypt, date of birth 1 July 1998 appealed against the Respondent's decision of 14 May 2018 to refuse a protection claim. His appeal came before First-tier Tribunal Judge C Andrew who on 10 October 2018 allowed his appeal on Refugee Convention grounds and on Articles 2 and 3 of the ECHR.

3. Permission was sought by the Secretary of State in grounds settled by the specialist appeals unit and permission was granted by Designated Immigration Judge Shaerf on 30 October 2018.

4. The decision of the Judge it is fair to say is somewhat marked by its brevity and the core ground 1 of the Secretary of State's challenge was essentially that the Judge had failed to resolve issues which raised doubts about the reliability of the claim.

5. There was no doubt that the Judge identified issues relating to inconsistency and resolved them, in the context of unchallenged medical evidence describing the impact of ill-treatment sustained by the Claimant as a minor at the hands of the state or agents of the state as claimed. The Judge accepted the basis of claim, applying the lower standard of proof applicable in protection based claims, and concluded that the Appellant had given a credible account of the general ill-treatment. Although it was fair to say the issue of the inconsistency of his presence at the time his father was killed or not was really somewhat immaterial to the issue which did not seem to trouble the Judge, namely the extent to which the Claimant had himself suffered injuries and ill-treatment at the hands of those State third parties.

6. I agree with Mrs Aboni that the decision was by no means perfect in terms of meeting and dealing with every issue that was raised with the Judge, but on the other hand I am mindful of the fact that decisions of the First-tier should not be interfered with unless there is clearly an error of law or a lack of reasons or adequate and sufficient reasons to justify the decision. There were cited to me the cases of KU Pakistan [2012] EWCA Civ 107 and Shizad [2013] UKUT 85 addressing the sufficiency of reasons and the extent to which the Judge making the primary findings should not be interfered with unless those findings were not reasonably open to the Judge to make.

9. For these reasons I conclude then that the Secretary of State's complaints whilst superficially attractive ultimately have encountered a decision which was sufficient for the purposes of properly disposing of the appeal.

The Original Tribunal's decision stands. The appeal of the Claimant was allowed on Refugee Convention and Articles 2 and 3 ECHR grounds. The appeal of the Secretary of State is dismissed.

The anonymity order made by the Original Tribunal stands and is continued.
Direction Regarding Anonymity - Rule 14 Of The Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 Dated 20 June 2019

Deputy Upper Tribunal Judge Davey

Switzerland Would Breach Article 3 by Returning to Afghanistan an Afghan Convert to Christianity

In Chamber judgment1 in the case of A.A. v. Switzerland (application no. 32218/17) the European Court of Human Rights held, unanimously, that there would be: a violation of Article 3 of the European Convention on Human Rights in the event of the applicant’s return to Afghanistan. The case concerned the removal from Switzerland to Afghanistan of an Afghan national of Hazara ethnicity who was a Muslim convert to Christianity.

The Court noted that according to many international documents on the situation in Afghanistan, Afghans who had become Christians or who were suspected of conversion would be exposed to a risk of persecution by various groups. It could take the form of State persecution and result in the death penalty.

The Court noted that, while the authenticity of the applicant’s conversion in Switzerland had been accepted by the Federal Administrative Court, it had not carried out a sufficient assessment of the risks that could be personally faced by the applicant if he were returned to Afghanistan. The Court found in particular that the file did not contain any evidence that the applicant had been questioned about the everyday practice of his Christian faith since his baptism in Switzerland and how he could, if returned, continue to practise it in Afghanistan, in particular in Kabul, where he had never lived and where he said that he would be unable to rebuild his future life.


Immigration - Statutory Inquiry Brook House IRC

Secretary of State Priti Patel

I am announcing today the conversion of the prisons and probation ombudsman (PPO) investigation of Brook House immigration removal centre to a statutory inquiry, in accordance with the Inquiries Act 2005. This inquiry will investigate the mistreatment of detainees at Brook House immigration removal centre broadcast in the BBC Panorama programme “Undercover: Britain’s Immigration Secrets” on 4 September 2017.

The Government take any allegation of mistreatment, and the welfare of immigration detainees, very seriously, and I want to establish the facts of what took place at Brook House and ensure that lessons are learnt to prevent these shocking events happening again.

Sue McAllister, the prisons and probation ombudsman, had appointed Kate Eves to lead their special investigation into Brook House. Following conversion of the special investigation into an inquiry, Sue McAllister, as ombudsman, was automatically appointed as the chair. However, to ensure continuity with their investigation I have agreed that Sue McAllister will recuse herself and Kate Eves will take up the position of inquiry chair. Kate Eves is an experienced and highly qualified investigator within custodial environments.

I have consulted with both Sue McAllister and with Kate Eves to confirm that the inquiry will have a similar scope to the PPO special investigation.

From today, the inquiry will have statutory powers to compel witnesses and establish the truth of what took place at Brook House.

Read more: Hansard, 5h November 2019,

Detainees With Indefinite Leave To Remain Not Entitled To Home Office Accommodation

An immigration detainee who has indefinite leave to remain must apply to their local council for housing benefit rather than for a bail address or asylum support provided by the Home Office. R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 (Admin) is about the interaction between mainstream benefits for people not subject to immigration control, and support for those in the immigration system. AT unusually fell into both groups; he had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him.

Entitlement to mainstream benefits
AT was granted bail in principle by the First-tier Tribunal on three occasions. As is often the case, the judge was happy for AT to be released into the community, but wanted him discharged to a stable address. Unfortunately, AT was not able to provide that for himself, so he applied to the Home Office for asylum accommodation under section 95 of the Immigration and Asylum Act 1999.

When rejected, he appealed that decision to the asylum support arm of the First-tier Tribunal. The appeal was dismissed on the ground that he was not "destitute" within the meaning of the legislation because he could apply for support from his local authority.

Read more: Freemovement,

Rubi Begum v Home Secretary

1. The appellant is a national of Bangladesh, born on 1 January 1989. She entered the UK on 10 May 2011 with entry clearance as the dependant of a Tier 4 Migrant valid until 30 October 2012. She applied for, and was refused, leave to remain as the spouse of a settled person. On 29 May 2015 she applied for leave to remain on family and private life grounds under the ten-year partner route, on the basis of her family life with her husband and her British child.

2. The appellant's application was refused on 11 January 2016. Her relationship with her partner was accepted but it was considered that the suitability provisions in S-LTR of Appendix FM of the immigration rules applied on the basis that ETS considered that she had fraudulently obtained her TOEIC English language certificate by using a proxy test-taker. Accordingly it was not accepted that the appellant met the requirements of paragraph R-LTRP.1.1(d)(i), although it was accepted that she met the requirements in paragraph R-LTRP.1.1(d)(ii) and (iii). The respondent considered that the appellant could not meet the requirements in paragraph 276ADE(1) on the basis of her private life and that there were no exceptional circumstances justifying a grant of leave outside the immigration rules.

3. The appellant appealed that decision and her appeal was heard in the First-tier Tribunal on 20 February 2017 by First-tier Tribunal Judge Devittie. Judge Devittie considered that the respondent had discharged the burden of proving deception and that the appellant could not meet the requirements for leave to remain under the immigration rules. He accepted that the appellant had a genuine and subsisting marriage and that she and her husband had two British daughters, but he considered that it was not unreasonable to expect the children to leave the UK and that there were no compelling circumstances justifying a grant of leave outside the rules. He accordingly dismissed the appeal.

4. The appellant sought, and was granted, permission to appeal to the Upper Tribunal. The appeal came before Deputy Upper Tribunal Judge Renton who found no error of law in Judge Devittie's decision and upheld the decision.

5. Permission was then sought to appeal that decision to the Court of Appeal. The grounds before the Court of Appeal were that the First-tier Tribunal and Upper Tribunal had erred in the application of section 117B(6) of the Nationality, Immigration and Asylum Act 2002; that the Upper Tribunal had erred by upholding the First-tier Tribunal's findings on proportionality and that the First-tier Tribunal and Upper Tribunal had erred in relation to the interpretation and application of paragraph S-LTR.1.6 of Appendix FM and the test concerning fraudulently obtained TOEIC certificates. Permission was granted in the Court of Appeal on all three grounds and the case was remitted by consent to the Upper Tribunal.

6. The matter then came before me to consider whether or not Judge Devittie had made material errors of law in his decision.

13. Accordingly Judge Devittie's decision suffers from material errors of law and has to be set aside and re-made. Both parties agreed that the decision could simply be re-made on the information and evidence already available with no need for a further hearing. On the basis of the respondent's concession, when taken together with the conclusion that the respondent has not, on the limited evidence available, discharged the burden of proving deception, it is clear that the appellant has succeeded in making out her Article 8 claim both within and outside the immigration rules. In any event, the unchallenged facts are that the appellant's husband is a British citizen who has lived in the UK since birth, Judge Devittie found that the best interests of the children were to remain in the UK where they have strong family ties aside from their parents and where there is a lack of immediate family in Bangladesh, the two children are British citizens and the appellant's departure from the UK would result in the children having to depart the UK in order to remain with their primary carer. In such circumstances, and in light of the recent case law, it seems to me that it would be unreasonable to expect the children to leave the UK and accordingly, and for the reasons already given, the decision in this case can simply be re-made by allowing the appeal on Article 8 grounds.

14. The making of the decision by the First-tier Tribunal involved the making of an error on a point of law. I set aside the decision and re-make it by allowing the appellant's appeal on Article 8 human rights grounds .