News & Views Monday 21st October to Sunday 27th October 2019


CCRC refers Immigration Conviction of Mr L to the Crown Court

Mr L, an Iranian national, was convicted at Uxbridge magistrates Court in the summer of 2011 for failing to produce a satisfactory immigration document (contrary to section 2(1) Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). Mr L arrived had at Heathrow Airport on a flight from Milan on June 19 and was unable to produce a valid passport or other identity document In interview he told immigration officials that he had not had an Iranian passport since his was seized by the authorities there in 1998 after he took part in a demonstration.

Mr L had previously left Iran without a passport and claimed asylum in the UK, but had returned to Iran after withdrawing his asylum claim. He was subsequently imprisoned in Iran for almost a year after being involved in demonstrations following the 2009 elections. He escaped and went into hiding. He fled Iran again traveling on foot and by lorry to Turkey where an agent provided him with a false passport and helped him travel to the UK via two unknown short stops. Mr L believed he was en route to Canada, but the agent took back the false passport and abandoned him at Heathrow Airport.

Mr L appeared at Uxbridge Magistrates’ Court where, on the advice of a solicitor, he pleaded guilty to failing to produce a satisfactory immigration document . He was convicted and sentenced to three months’ imprisonment. In 2011, Mr L was granted asylum with five years’ leave to remain in the UK and was subsequently granted indefinite leave to remain.

He applied to the CCRC for a review of his conviction in August 2018. Having reviewed the case in detail, the Commission has decided to refer Mr L’s conviction for appeal because it considers that there is a real possibility that the Crown Court will vacate his guilty plea and order a stay of proceedings. Or, if Mr L is prosecuted again, that he will be acquitted on the basis of the statutory defence under section 2(4)(c) of Asylum and Immigration (Treatment of Claimants) Act 2004, that ought to have been available to him when he was first prosecuted.

High Court Upholds Failing System of Suicide Reports in Detention Centres

The High Court has decided that rule 35(2) of the Detention Centre Rules is not unlawful, despite acknowledging the overwhelming evidence that it has failed to protect the welfare of detainees who are at risk of suicide. In R (IS (Bangladesh)) v Secretary of State for the Home Department [2019] EWHC 2700 (Admin), the rule was challenged by a detainee who had been consistently identified by healthcare staff as presenting a risk of suicide, yet no rule 35(2) report was ever made to report this information to Home Office officials and trigger a detention review. Rule 35(2) places a duty on the detention centre GP to report any concerns they have suicidal detainees to the Home Office.

Awful, but Lawful

The judgment records that there is overwhelming evidence that Rule 35(2) is simply not working in practice: The Claimant’s solicitors have compiled statistics secured from requests of the Defendant made under the Freedom of Information Act 2000. These show that in the final quarter of 2017 528 people were on ACDTs [a suicide monitoring process]. Yet in the whole of 2017 only 10 r35(2) reports were completed. A report of Her Majesty’s Chief Inspector of Prisons shows that in Colnbrook IRC in the final quarter of 2017 there were 154 detainees on constant supervision because of a risk of self-harm/suicide. Only 10 were the subject of 35(2) reports.

Read more: Freemovement,

Charity Launches Legal Action Against NHS Fees For Pregnant Migrants

A charity has launched a legal challenge against the policy of charging vulnerable migrant women £7,000 or more to access NHS maternity care. Maternity care falls under “immediately necessary service” in the UK, which means it must never be refused or delayed regardless of a patient’s immigration status.

But Maternity Action says destitute migrant women who struggle to afford food and accommodation are receiving bills of £7,000 or more. It claims its research shows women are avoiding essential medical care in an attempt to save money. Rosalind Bragg, the charity’s director, said: “Many vulnerable women are avoiding maternity care out of fear of incurring a bill that they can’t afford to pay. We hear from women who are pursued by debt collectors during their pregnancy. They are commencing care late, skipping appointments and in some cases giving birth at home unattended. There’s also the real fear of having the Home Office informed of their insecure immigration status if they do seek care.”

The legal challenge argues that the government is in breach of the public sector equality duty. The charity says there is evidence that charging has a disproportionate, negative impact on women and the government has not properly investigated this.

Read more: Aamna Mohdin, Guardian,

Multiple Rights Violations of Mother and Three Young Children Held in Immigration Detention in Turkey

In Chamber judgment1 in the case of G.B. and Others v. Turkey (application no. 4633/15) the European Court of Human Rights held, unanimously, that there had been: two violations of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights concerning the applicants’ conditions of detention pending deportation at two different removal centres; a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 because of the lack of effective remedies for the applicants to complain about the conditions of detention at one of the removal centres; and, violations of Article 5 §§ 1 and 4 (right to liberty and security / right to have lawfulness of detention decided speedily by a court).

The case concerned the immigration detention of a mother and her three young children pending their deportation from Turkey. They had been released after nearly four months following a series of challenges about the lawfulness of their detention before the domestic courts.

The Court found that the Government had failed to disprove the applicants’ allegations that they had been detained in overcrowded dormitories, had rarely been allowed to go outside for fresh air, had constantly been exposed to cigarette smoke from other detainees and had not been given suitable food for children. Such conditions were manifestly adverse even for adults, and had therefore been all the more so for the three applicants who were vulnerable children. It also held that even though a new law had come into force in 2014 which had completely overhauled the legal framework on migration and asylum in Turkey, it had had been wholly ineffective in the applicants’ case for them to complain about either the conditions or lawfulness of their detention.

Read more: ECtHR,

Relatives of Refugees are not Legally Refugees After All

The Court of Appeal has held that the UN Refugee Convention should not be interpreted to include an implied type of derivative refugee status for the family members of refugees. As a result, anyone who was granted refugee status under UK law as the family member of a recognised refugee does not benefit from the protections in the Refugee Convention against withdrawal of refugee status. The legal issue is a highly technical matter of treaty interpretation, but it has wide practical ramifications for the family members of recognised refugees. In effect, the Court of Appeal has ruled that the Home Office has been mistakenly giving out refugee status to the family members of actual refugees.

Family member of a refugee convicted of a crime
Secretary of State for the Home Department v JS (Uganda) [2019] EWCA Civ 1670 concerned a Ugandan man who had been admitted to the United Kingdom to be reunited with his mother. She had already been recognised as a refugee under the Refugee Convention. JS was granted leave to remain in the United Kingdom, apparently on the basis that he was also a refugee. However, at no point had there been any assessment of whether he was himself at risk of persecution in Uganda. JS was then convicted of a serious criminal offence and the Home Office decided to deport him. At this point officials still believed that JS was a refugee under the Refugee Convention. They therefore proposed to cease his refugee status because he had been convicted of a serious crime. The case progressed through the First Tier Tribunal and the Upper Tribunal on that basis. In the Court of Appeal, the Home Office changed its position and argued that JS had never been granted refugee status at all.

Read more: Alexander Schymyck, Freemovement,

Home Office Pay £25,000 Damages After Unlawfully Trying to Deport Trafficking Victim

The Home Office has been forced to pay out tens of thousands of pounds in damages to a victim of modern slavery after the courts ruled that he was unlawfully detained and threatened with deportation. The Polish man, who cannot be named for legal reasons, was held in immigration detention and told he was liable to be removed on the grounds that he had shoplifted, despite the Home Office itself having identified that he had been acting under the compulsion of his exploiters. An immigration judge has now ruled his detention was unlawful, and said the department acted “disingenuously” in rejecting its own finding that he had been a victim of forced labour in order to pursue his deportation. The Home Office settled the case out of court, agreeing to pay the man £25,000 in damages. Lawyers and campaigners accused the government of seeing vulnerable and traumatised people “primarily through the lens of immigration enforcement” and being “single-minded in its intent” to deport foreign nationals.

Read more: May Bulman, Independent,

Family Relocation to the UK: The Problem of “Sole Responsibility”

What do the Immigration Rules say?

The position in the Rules on visas for children is surprisingly harsh. Although children can apply under various different routes (depending on their parents’ status) all children must meet the following requirements, regardless of the route under which they apply:

  1. The child must be under the age of 18 on the date of application (or have already been recognized as a Dependent Child prior to turning 18);
  2. The child must not be married, must not have formed an independent family unit and must not be leading an independent life;
  3. Any child who is over the age of 16 and is applying under the Points Based System must provide evidence to show that they continue to remain dependent on their parents;
  4. Both parents must be lawfully in the UK, or must be making an application for entry to the UK at the same time as the child. If only one parent is in the UK or making an application at the same time as the child then:

    1. That parent must be the sole surviving parent, or
    2. That parent must have sole responsibility for the child’s upbringing, or
    3. There must be serious or compelling family or other considerations which would make it undesirable to refuse the application, and suitable arrangements must be made in the UK for the child’s care.

It is the “sole responsibility” requirement which usually represents the biggest obstacle for most applicants in Ms Murrey’s position, where one parent is relocating to the UK and the other is not. Unless the parent who lives abroad abdicates all parental responsibility for the care and welfare of their child, it will be very difficult to prove sole responsibility. As Ms Murrey’s case shows, it is not enough for that parent to simply want their child to live in the UK and to consent to it.

Parents must therefore rely on other considerations to argue why their children should be allowed to live with them in the UK - and this is where the problem lies.
The wording in the Rules which refers to ‘serious and compelling considerations’ allows the Home Office to implement an exceptionally strict test when considering applications of this nature. Effectively, it must be shown that neither the parent abroad, nor any other relative, can adequately care for the child in their own country, and that the child’s circumstances must be exceptional in relation to other children living in their home country.

Although the Home Office is supposed to take account of all arguments and circumstances put forward in an application, the unfortunate reality is that these applications are consistently refused where responsibility for the child is shared, and where parents are unable to meet the particularly onerous requirement to demonstrate ‘serious and compelling’ circumstances.

Are the Immigration Rules Irrelevant in Modern Times?
In her interview with The Guardian, Ms Murrey stated that “this policy seems to operate under the guise of keeping families together”. However, what is becoming increasingly clear is that the Immigration Rules are antiquated and fail to reflect the reality of modern family dynamics. The Rules pertaining to children fail to consider families where parents are divorced, separated or simply choose to live apart for other reasons, but continue to raise their children together.

In an age where both men and women pursue successful careers, and where both parents take responsibility for raising their children, it is absurd that parents are forced into choices with such significant consequences for their children’s welfare and upbringing.

Parents should have the right to choose whom the child lives with, having regard to important factors such as access to healthcare, education, childcare, and emotional support. The Immigration Rules should, at their core, take a child-centered approach, and by preventing parents from balancing these factors they simply serve to do the opposite.

The Home Office alleges that there has been a significant shift in policy to welcome to the UK highly talented individuals within the fields of academia, research and science. But with a hostile and old-fashioned immigration system which prevents people from being the ‘brightest and the best’ in their profession by causing potentially devastating disruptions to their family life, will these proposed changes really have any significant impact at all?

Source: Gherson,