News & Views Monday 28 June to Sunday 4th July 2021


‘Gulf’ Between Demand for Immigration Advice and the Ability to Meet It

The total capacity for legal advice on immigration work in London could run to just 10,000 legally aided cases plus a further 4,000 individual pieces of case work a year compared to demand running to ‘the hundreds of thousands’, according to a new study recording the ‘gulf’ between supply of and demand’ for immigration advice in the capital. Most non-asylum immigration work was removed from the scope of legal aid following the cuts under Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.

Co-authors Jo Wilding, Maureen Mguni and Travis Van Isacker point out that the legal not-for-profit advice sector has ‘been reduced by austerity and consequent local authority funding cuts’ and immigration law has become ‘more complex’. The report highlights ‘infrastructure challenges’ facing the sector including ‘a lack of trained advisors and a recruitment crisis’. ‘These changes have transformed the landscape of both demand for and supply of immigration advice,’ they argue. The study follows barrister Jo Wilding’s research on the supply side of the market for immigration and asylum legal aid services – see here.

London has four out of 10 of the number of offices holding legal aid contracts in England and Wales, and more than half of the offices which are registered with the Office of the Immigration Services Commissioner (OISC) to offer non-fee charging services at the highest level of advice and casework. It is a criminal offence to provide immigration advice unless an adviser is either OISC accredited or else appropriately legally qualified.

Read more: Jon Robins, Justice Gap,

Belgium’s Climate Failures Violate Human Rights

Belgium’s failure to meet climate targets is a violation of human rights, a Brussels court has ruled, in the latest legal victory against public authorities that have broken promises to tackle the climate emergency. The Brussels court of first instance declared the Belgian state had committed an offence under Belgian’s civil law and breached the European convention on human rights. By not taking all “necessary measures” to prevent the “detrimental” effects of climate change, the court said, Belgian authorities had breached the right to life (article 2) and the right to respect for private and family life (article 8).

The NGO that brought the case, Klimaatzaak, hailed the judgment as historic, both in the nature of the decision and the court’s recognition of 58,000 citizens as co-plaintiffs. “For the first time it is recognised that we are in direct, personal and real danger,” said Serge de Gheldere, the chairman of Klimaatzaak, which means climate case in Dutch. The legal victory follows similar rulings in the Netherlands, Germany and France, where judges have condemned governments for inadequate responses to the climate crisis or failing to keep their promises.

Read more: Jennifer Rankin, Guardian,

Upper Tribunal Rebuked for Failing to Understand Its Job (Again)

The Court of Appeal has rebuked the Upper Tribunal for reversing an immigration judge’s decision without identifying an error of law. The Upper Tribunal’s jurisdiction to allow an appeal from the First-tier Tribunal depends on having first identified an error of law in the decision. In this case, the Upper Tribunal failed to do so. Regular readers will be familiar with the Court of Appeal correcting the Upper Tribunal for making this type of mistake: see this entry clearance example and this deportation example.

“Mere disagreement” - AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948 concerned a woman being excluded from Refugee Convention protection over “online statements encouraging jihad”. There was no significant dispute about the law in this area and the Upper Tribunal acknowledged that the First-tier had set out that law correctly. But it nevertheless allowed the Home Office’s appeal on the ground that the lower tribunal had applied incorrect weighting to the evidence. As Lord Justice Warby commented, this is a red flag that an appellate court has strayed beyond its remit:

Read morea: Freemovement,

Malawian Child Farmer Claims Against British American Tobacco and Imperial to Proceed

The two tobacco companies had asked the court to throw out the claims which are brought by tobacco farmers and their wives and children alleging that the companies are responsible for the farmers being exploited on the Malawian tobacco farmers. They also argue that BAT and Imperial have been unjustly enriched because the tobacco is being produced in conditions that amount to child and forced labour. The High Court today Friday 25th June 2021, dismissed the application to strike out the claims, on the grounds that the claimants had properly pleaded the central allegation that they had grown tobacco that had been purchased by BAT and/or Imperial and used by them to make cigarettes and other tobacco products. Mr Justice Martin Spencer commented that tobacco companies’ applications to strike out had been “misconceived”.

The tobacco companies had argued that the claimants should be required to set out all their evidence when they issued the claim. The judge said this was wrong as there is a difference in what evidence is needed when beginning a claim, versus what is needed to prove a claim at trial. Claimants are not required to have all the evidence needed to prove a claim at the outset of the legal action as this would be a massive hurdle to overcome and would significantly impede access to justice.

In their legal case the farmers and their families allege that BAT and Imperial facilitate unlawful and dangerous conditions, in which they, having been trafficked from their villages, have to build their own homes, live on a daily small portion of maize, work 6am to midnight seven days a week, and have to borrow money to be able to feed their families throughout the season. Much of the time the farmers are paid nothing at the end of the season.

The claim will now continue and the next stage will be for the Court to set down directions for the case to progress towards a trial with the likely next step for the Defendants to provide defences to the claims.

Read more: Leigh Day Solicitors,

High Court Strikes Down Pandemic Protections for Refused Asylum Seekers

The High Court has overturned a tribunal judgment that had instructed the Home Office to house refused asylum seekers until lockdown restrictions end. The decision in R (Secretary of State for the Home Department) v First-tier Tribunal (Social Entitlement Chamber) [2021] EWHC 1690 (Admin) is said to affect at least 1,000 people. Asylum support during the pandemic has generated a serious volume of litigation. The ruling at issue here was handed down by the head judge at the asylum support tribunal on 29 April 2021, in the case of AM. The headline finding, as paraphrased by the High Court, was: the health risks associated with the pandemic are such that the Secretary of State is legally required to provide accommodation and support not only to AM, but also to all destitute failed asylum-seekers, until step 4 on the Roadmap is reached.

The “Roadmap” is the government’s timetable for lifting lockdown restrictions in England. Step 4 — the removal of all legal limits on social contact — was slated to be “no earlier than 21 June“; it will now be either 5 or 19 July. The Home Office challenged the AM ruling by way of judicial review, and has now won.

Read morea: Freemovement,