Burden of Proof on Internal Relocation Still on Appellant Says Upper Tribunal
The Upper Tribunal has confirmed that it is for asylum seekers to disprove the possibility of safe and reasonable internal relocation if the Home Office identifies a potential safe haven. In MB (Internal relocation – burden of proof) Albania [2019] UKUT 392 (IAC), the Upper Tribunal reconsidered the earlier decision of AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) and concluded that it remains good law on this point. That is notwithstanding a decision of the Court of Justice of the European Union which emphasises the need for cooperation by both parties in collating evidence for asylum appeals.
But having spent a long time deciding that the burden of proof rested on the appellant, the tribunal eventually redetermined the appeal using the holistic approach anyway. The redetermination of the appeal illustrates the extent to which arguing about the exact legal burden of proof distracts from the real question of holistically assessing the evidence. The Upper Tribunal was clearly surprised that MB had not sought to provide any up to date evidence about the safety and reasonableness of relocation. It concluded that internal relocation would be safe and reasonable for her, but in light of the lack of evidence placed before the tribunal this finding should be considered to be of minimal relevance in future appeals.
Read more: Freemovement, https://is.gd/zWr5eU
When Voluntary Return is Not Voluntary At All
In recent years the United Kingdom government has resorted to indirect measures like the hostile environment to force people to leave the UK, alongside directly removing people. The government can then claim that the person left the UK voluntarily, and may have thought that there could be no liability for any breaches of the person's human rights after they have returned to their country of origin.
However, the Strasbourg court has now ruled that voluntary return must be a free and informed choice. It will not be free and informed for a failed asylum seeker who is placed under pressure to leave by the immigration system. NA v Finland (application no. 25244/18) was a case brought against the Finnish government by the daughter of a man who had claimed asylum in Finland. He was originally from Iraq and had fled after an assassination attempt against him. His asylum application was refused and although he initially challenged the decision, he decided in the face of plans to detain and remove him to accept a voluntary return package offered by the International Organisation for Migration. As part of the deal, he signed a waiver stating that the Finnish government could not be held liable or responsible for his return in any way.
The Finnish government argued that the application was not admissible because the applicant's father had voluntarily returned to Iraq and therefore the consequences of his return had nothing to do with Finland. The court rejected this argument: In the light of the circumstances of the case, in particular the factual background of the applicant's father's flight from Iraq as acknowledged by the domestic authorities, the Court sees no reason to doubt that he would not have returned there under the scheme of "assisted voluntary return" had it not been for the enforceable removal order issued against him. Consequently, his departure was not "voluntary" in terms of his free choice.
Read more: Freemovement, https://is.gd/VvxX72
Home Office ‘Ignoring Offers to Give Homes to Child Refugees’
The Home Office has been accused of ignoring more than 1,400 offers from local councils to house child refugees, prompting criticism that Boris Johnson’s government is defying its obligations to offer sanctuary to vulnerable minors. Councils across the UK have volunteered to take hundreds of unaccompanied children from across Europe, the Middle East and Africa. However, numbers of arrivals are said to be “pitifully low to nonexistent”.
Wiltshire, Leicestershire, Brighton and Hove, along with the London boroughs of Islington, Hammersmith and Fulham, and Lewisham have each pledged to take at least 100 children, according to charity Safe Passage.
Birmingham has offered to support 80 more minors, Bristol 60 and Leicester 50. More than 400 of the offers come from Conservative-run local authorities, 950 from Labour councils and the remainder from SNP and independents. It is estimated that about 200 child refugees are living in terrible conditions in northern France, with thousands more trapped in Italy and Greece, where camps are vastly overcrowded and conditions are described as dire. Many are eligible for transfer to the UK.
The claims of Home Office resistance to the councils’ offers comes after Johnson told parliament on Thursday he was reducing legal protections for refugee children in his new Brexit bill. The legislation, passed last week with a majority of 124, jettisons a commitment in EU regulations that secures safeguards for asylum-seeking minors in Europe who want to reunite with family in the UK.
Read more: Mark Townsend, Guardian, https://is.gd/aR26jM
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Johnson Condemned for Dropping Pledge to Replace Family Reunion Law
The loss of family reunion rights for unaccompanied asylum-seeking children will leave them with “no options” except taking dangerous routes and using smugglers, charities in France and Greece are warning. The prime minister, Boris Johnson, faced criticism after he told parliament he had dropped a promise to replace the EU law that allows child refugees stranded in Europe to reunite with family members in the UK after Brexit.
Clare Moseley, the director of Care4Calais, said the news was devastating for those working with young asylum-seekers. “I’m so shocked. This will have a massive impact. Just yesterday I was with an Afghan boy whose mother is dead, his father is in the UK, there is nowhere else that boy should be. The idea that he won’t have that right to join his father at all is horrific. How could anyone think there is anywhere else that boy should be? “We have many very young Afghan boys here. Some are under 13. Nearly all the young people here are trying to reach family in the UK. That is the only reason anyone would put up with the horrible conditions here.”
Authorities in Dunkirk and Calais have recently used force to keep the area clear of tents, leaving nowhere for migrants to shelter. Hundreds, including children, sleep rough with no toilets or running water.
Bastien Roland, a lawer supporting young asylum seekers in northern France, said family reunion was a way to persuade vulnerable children to enter the official asylum system.
Read more: Harriet Grant, Guardian, https://is.gd/PLrWbj
Refusal of Student Loan Due to Immigration Status Was Discriminatory
After being granted humanitarian protection (a form of leave to remain in the UK) in recognition that returning to her country of origin would breach her human rights, our client was finally able to pursue her career. Her application for a student loan was rejected, however, because the law requires her to wait a further 3 years to build up sufficient lawful residence to be eligible for a loan. Had she been granted refugee status she would not have had to wait, and there was no significant difference between her situation and that of a refugee.
This difference in treatment left our client unable to study, so she instructed DPG to challenge the discriminatory impact of the Student Finance Regulations. A High Court judge accepted the case was arguable and granted permission for the case to proceed to a final hearing, which was due to take place on 18 December 2019. However, shortly before the hearing, the Secretary of State for Education accepted that the Regulations were discriminatory and agreed to pay our client compensation to enable her to fund and finally begin her studies, which she will start next year. The Claimant was represented by partner Adam Hundt, solicitor Ugo Hayter and trainee solicitor Althia Stephens. Counsels instructed in this matter was Helen Mountfield QC and Raj Desai of Matrix Chambers.
FN Babies Should Not Have Been Charged For Life-Saving Treatment
Last year two babies were born prematurely, and had to spend the first few months of their lives in intensive care. They were left with significant ongoing health problems for which they require regular treatment. Almost a year later their parents, who have leave to remain in the UK, began to receive invoices from the hospitals that had treated their babies, amounting to almost £100,000.
Full payment was demanded within 14 days from the parents, who work in very low paid jobs. They were unable to do so, and sought advice from a charity, that referred them to us. The law requires parents who have limited leave to remain in the UK to apply for leave to remain for their babies, but these parents were unaware of that. Their focus was on being there for the babies who were in Neo-natal intensive care, whilst trying not to lose their jobs.
The rules on charging migrants for NHS treatment state that after 3 months babies are charged, so at that point (although the parents were unaware) the babies started to accumulate debts. Landmark Chambers helped the family challenge that decision by way of judicial review, and permission was granted for the case to proceed to a final hearing, which was due to take place in November. Shortly before the hearing the government agreed to wipe out the debts so that they would not have any practical impact.
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