News & Views Monday 18th November to Sunday 24th November 2019

News & Views Monday 18th November to Sunday 24th November 2019

Gay Nigerian Refugee Wins Appeal Against Conviction

A gay Nigerian refugee who was jailed after trying to seek asylum in Canada by travelling using another person’s passport has won an appeal against his conviction. The Court of Appeal ruled on Thursday (14 November) that Richard Idahosa had not been properly informed about his rights as a “refugee in transit” when he pleaded guilty to possessing an identity document with improper intent in 2013. People who arrive in the UK directly from a country where their life or freedom is threatened have a defence against this offence under section 31 of the Immigration and Asylum Act 1999. The 54-year-old, who was granted refugee status by the Home Office in 2015, was sentenced to 15 months in prison which he has now long since served.

However, his criminal record has continued to cause him difficulties in obtaining suitable employment in the UK. The court heard how Idahosa, originally from Benin City, lawfully travelled to the UK on a tourist visa in April 2013 after his sexuality had been revealed and he no longer found it safe to remain in Nigeria – where same-sex conduct is banned.

wo months later he attempted to travel to Canada to be reunited with his partner, Abu, where he intended to seek asylum. He was stopped at Gatwick Airport having been caught using a British passport belonging to a person named Sunday Egbefe Afigod. Idahosa could not travel to Canada using his own passport because, unlike British nationals, Nigerians must apply for a visa while still in their home country.

Read more: Human Rights Info, https://is.gd/RetrLi

End of the Government’s 100,000 Migrant Target

It was confirmed last week that the government has scrapped the infamous target on net annual migration – one that had since its announcement been divisive and controversial, and which had brought Theresa May’s government considerable problems and even more negative press.

The Security Minister, Brandon Lewis, was quoted in the Evening Standard as saying that the government was not going to set an “arbitrary target” for inward migration. He reiterated the Prime Minister’s support for a points-based immigration system, saying that it would give priority to skilled workers and suggesting that net immigration figures would fall. It must have come as a relief to many within Westminster to hear of the formal end to a policy that had never been achieved. The Evening Standard put the 2018 level of migration at 258,000, and the 2016 level at 336,000 – both a far cry from the 100,000 target held on to by the government for so long.

The Home Secretary, Priti Patel also stated last week that reducing net migration would remain a priority for a Conservative majority government after 12 December 2019. It is intended that this will be achieved through the implementation of an Australian style points-based immigration system which will apply to all migrants after Brexit and give priority to those with higher skills. Ms Patel stressed that the introduction of such a system would be a means to ‘control our borders and protect our public services’.

Given that the general election is only weeks away is understandable why a policy that places no emphasis on concrete numbers or quantifiable expectations would be the government’s preferred option at this time. Nevertheless, the above announcement was welcomed by business groups such as the Institute of Directors, which has pressed consistently for immigration policies to be designed around economic realities and national necessity rather than politically expedient and populist sound-bites.

We shall wait to see what will come to replace the government’s previous attempt to put an arbitrary limit on immigration figures, but what is clear for now is that the long-standing pledge to bring that figure down to 100,000 has been consigned to history.
Posted by: Gherson Immigration, https://is.gd/AdVZXl

Confirmed: Child Whose Mother Isn’t Married to her Father Unlawfully Denied Citizenship

The Home Office has dropped its appeal against a judgment that children whose mothers are married to someone other than their fathers are being unlawfully discriminated against by British nationality legislation. In July 2018, the High Court ruled that part of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case was K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin).

The provision in question was section 50(9A). It states that:
For the purposes of this Act, a child’s father is –

the husband, at the time of the child’s birth, of the woman who gives birth to the child…

This can prevent a child’s biological father from being recognised as the child’s legal father for the purpose of passing on his British citizenship. In K’s case, the Home Office tore up her British passport, saying that she wasn’t legally a citizen, even though she could prove that her biological father was British. The effect of section 50(9A) was that her mother’s estranged partner, to whom she was still married, was treated as her father — denying K citizenship.
The High Court found that:

the scheme of section 50(9A) of the BNA 1981 as the Defendant currently reads and applies it breaches the Claimant’s right under Article 14 ECHR read with Article 8, to enjoy equal access to the ability to acquire her biological father’s nationality which she would enjoy if her mother had not been married to a man other than her biological father at the time of her birth.

The Home Office initially appealed. But Law Lane Solicitors, representing K, now say that the appeal has been abandoned.

Read more: Freemovement, https://is.gd/GluGdJ

Gay Nigerian Refugee Wins Appeal Against Conviction

The Court of Appeal ruled on Thursday (14 November) that Richard Idahosa had not been properly informed about his rights as a “refugee in transit” when he pleaded guilty to possessing an identity document with improper intent in 2013. People who arrive in the UK directly from a country where their life or freedom is threatened have a defence against this offence under section 31 of the Immigration and Asylum Act 1999.

The 54-year-old, who was granted refugee status by the Home Office in 2015, was sentenced to 15 months in prison which he has now long since served. However, his criminal record has continued to cause him difficulties in obtaining suitable employment in the UK.

The court heard how Idahosa, originally from Benin City, lawfully travelled to the UK on a tourist visa in April 2013 after his sexuality had been revealed and he no longer found it safe to remain in Nigeria – where same-sex conduct is banned. Two months later he attempted to travel to Canada to be reunited with his partner, Abu, where he intended to seek asylum.

He was stopped at Gatwick Airport having been caught using a British passport belonging to a person named Sunday Egbefe Afigod. Idahosa could not travel to Canada using his own passport because, unlike British nationals, Nigerians must apply for a visa while still in their home country.

‘Not Given An Informed Choice’ The court heard that Idahosa was arrested and questioned at Crawley Police Station but received no legal advice from duty solicitor Timothy Spooner, as he would not speak to him for “fear of self-incrimination.”

Read more: Human Rights News, https://is.gd/RetrLi

ARC: Information Notes on Prison Conditions – Afghanistan & Nigeria

ARC Foundation has been keeping track of the dwindling number of Home Office Country Policy and Information Notes (CPIN) on Prison Conditions. By summer 2019, there were only two in existence; Afghanistan, published in September 2015 and Nigeria, dated November 2016.

As they contained country information that was over three years old and both argued that prisons conditions were unlikely to violate the threshold of Article 3 of the European Convention on Human Rights, we researched whether the country information contained in these CPINs was reflective of the current situation in Afghanistan and Nigeria, as reflected by publicly available sources. David Neale, Legal Researcher at Garden Court Chambers, kindly drafted legal notes to accompany our research.

Our reports on Prison Conditions in Afghanistan (September 2019) and Prison Conditions in Nigeria (November 2019) present country information on issues of relevance as identified by UK and European Court of Human Rights case law, the UN Istanbul Protocol and the Nelson Mandela Rules.

During the course of our research, both CPINs were archived and removed from the Home Office’s website, meaning that no CPINs existed on Prison Conditions, until the recently published edition on Pakistan, dated November 2019.

In the absence of any Home Office guidance on prison conditions in Afghanistan or Nigeria, the reports are intended as a tool to assist legal practitioners and to help ensure that all relevant material is considered by decision-makers. We would hugely appreciate any comments and feedback as to how the reports have been used in refugee status determination processes, or beyond.

We are extremely grateful to Paul Hamlyn Foundation for its support of this project.

Source: Asylum Research Centre (ARC): https://is.gd/7CJlYg

Alleged Trafficking - National Referral Mechanism - Should Proceed As Follows

In the light of the judgment of Flaux LJ in Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 594 and subsequent decisions of the Upper Tribunal and Administrative Court, a tribunal deciding a protection or human rights appeal, which concerns alleged trafficking within the scope of the Council of Europe Convention on Action against Trafficking in Human Beings and decisions of the Competent Authority (CA) under the United Kingdom's National Referral Mechanism, should proceed as follows:

(a) In a protection appeal, the "reasonable grounds" or "conclusive grounds" decision of the CA will be part of the evidence that the tribunal will have to assess in reaching its decision on that appeal, giving the CA's decision such weight as is due, bearing in mind that the standard of proof applied by the CA in a "conclusive grounds" decision was the balance of probabilities.

(b) In a human rights appeal, a finding by the tribunal that the CA has failed to reach a rational decision on whether the appellant has been the victim of trafficking, such as to be eligible for leave to remain in the United Kingdom for that reason alone, may lead the tribunal to allow the human rights appeal, on the basis that removing the appellant at this stage would be a disproportionate interference with the appellant's Article 8 ECHR rights. This scenario is, however, of narrow ambit and is unlikely to be much encountered in practice.

(c) In a human rights appeal, the question whether the appellant has been the victim of trafficking may be relevant to the issue of whether the appellant's removal would breach the ECHR, even where it is not asserted there is a trafficking-related risk of harm in the country of proposed return and irrespective of what is said in sub-paragraph (b) above: e.g. where the fact of trafficking may have caused the appellant physical or psychological harm. Here, as in sub-paragraph (a) above, the CA's decision on past trafficking will be part of the evidence to be assessed by the tribunal.

Looking to Prove 10 Years Long Residence in the UK? Watch Out For Your Absences!

The long residency route (10 years lawful residence) to Indefinite Leave to Remain (“ILR”) (also known as permanent residence) has recently been the subject of more attention than usual, in part due to the number of refusals the Home Office has been issuing to hopefuls applying under this route. It would appear that this is due to a consistent misunderstanding of what constitutes a ‘continuous period’ of residence in the UK – the vital component of an application under the ‘long residence’ rules. No less important is to understand how this ‘continuous period’ can be broken.

Anyone who wishes to apply for ILR after having been in the UK for 10 years, on various different visas, would logically consider applying under the long residency route. However, anyone contemplating this option must ensure that, over the entirety of the continuous 10-year period, they have never spent more than 6 months continuously outside of the UK, or a total of 18 months outside of the UK during the entire 10 years. As the Home Office defines a month as being 30 days, this would translate to no more than 180 days at any one time, or no more than 540 days across the 10-year period. This is relatively strict, and does not allow for prolonged absences.

The trap into which many may fall is to believe – mistakenly – that the level of absences permitted by alternative routes to ILR are similarly applicable to the 10-year-long residency route. They are not!

Read more: Gherson Immigration, https://is.gd/dAjxxg

Importance of Keeping the Home Office Up To Date

What happens when someone doesn’t receive a decision sent to them by the Home Office that affects their right to continue living in the UK?

The answer to this question depends on what attempts were made to send the decision to the person and whether this constituted “deemed service”. Deemed service is a term most lawyers will be familiar with. For those who are not lawyers, service is essentially just formal delivery of a document.

The rules on service – whether of court documents, contractual notices, immigration decisions, or other important documents – are designed to ensure that anyone who will be affected by the document receives it and is aware of its contents.

Deemed service is when the law assumes the person affected has received the document, even when in reality they may be completely unaware of its existence. This is generally only permitted in limited circumstances.
This relatively opaque corner of immigration law was recently considered by the High Court in Rahman v Secretary of State for the Home Department [2019] EWHC 2952 (Admin).

The Home Office had sent a curtailment letter cancelling Mr Rahman’s student visa to an old address. Mr Rahman had not told the department his new address (although he had told his college and believed it would update the Home Office). He did not receive the letter. It was returned to the Home Office by Royal Mail marked “returned – moved – this person not living here anymore”. The Home Office made no second attempt to deliver the letter, deeming it to be served as it had been sent to the last known address.

Read more: Freemovement, https://is.gd/ZZe0zO

High Court Declares Trafficking Policy Unlawful

On Friday 15th November, the High Court ruled as unlawful the Home Office policy relating to victims of trafficking seeking a reconsideration of a negative decision, which restricted those requests only via a First Responder or Support Provider. Now the Home Office has agreed that it will direct its decision makers to no longer refuse a reconsideration request, even if that request has not come from a First Responders or a support provider.
Today, the High Court handed down an important judgment, declaring that the Home Office’ Victims of Modern Slavery: Competent Authority Guidance unlawful for erecting barriers to identification of victims of trafficking.

Our client, (anonymised as ‘DS’ to protect her identity) is a victim of sexual exploitation and human trafficking. In 2018 the Home Office rejected her claim to have been trafficked. We obtained new significant expert evidence in support of her claim and asked the Home Office to reconsider the negative decision. They refused to even look at the evidence. They relied on their policy, which stated that only a First Responder or NRM support provider can make a reconsideration request on behalf of the victim, and as we are lawyers the Home Office would not even entertain the request. It was only after we brought a challenge before the Court and the Court gave our client permission to proceed with her case to trial that the Home Office agreed to look at her individual decision again, and finally accepted that she is a victim of trafficking.

The Home Office, however, refused to amend their policy and argued that victims should not be able to make a direct request to the decision-maker to reconsider a negative trafficking decision. Our client instructed us to continue with the challenge to the Home Office policy as being unlawful for preventing victims of trafficking from being identified correctly, contrary to common law and the Human Rights Act 1998.

We gathered a compelling body of evidence from those who work with victims, including Unseen, Human Trafficking Foundation, Hope for Justice, the Snowdrop Project and Anti-Slavery International (to whom we are hugely grateful). This evidence demonstrated that the Home Office policy did not work in practice; different First Responders and NRM support providers approached reconsideration requests differently. They were not funded to help victims to pursue challenges to negative decisions, nor were they provided with the necessary training. This meant that whether victims got help with challenging a negative decision through a reconsideration request was dependent on which organisation provided them with support. As a whole, the policy impaired victims’ right to an effective remedy, which is a fundamental constitutional right.