Nationality and Borders Act 2022: Implementation
As of Tuesday 28th June, new measures from the Act came into effect, including:
Amended criminal offences with increased maximum penalties for those attempting to arrive in the UK illegally—from six months to four years—and maximum life imprisonment for people smugglers, including pilots of small boats in the Channel and others who dangerously smuggle migrants into the UK. In addition, we have increased the maximum penalty for Foreign National offenders who return to the UK in breach of a deportation order from six months to five years;
A suite of asylum reforms, with the central principle that those seeking protection should claim asylum in the first safe country they reach. Our reforms also introduce a new differentiated approach, whereby those who did not come to the UK directly, did not claim without delay, or did not show good cause for their illegal entry or presence, may be given lesser entitlements than those who have complied with these requirements, for example refugees who have come to the UK via safe and legal routes. The different entitlements include a shorter grant of permission to stay—a minimum of 30 months instead of five years—no automatic right to settlement and access to family reunion only where a refusal would breach our international obligations.
An ability to impose visa penalties—this means slowing or stopping our services where countries pose a risk to international peace and security and those that refuse to take back their own citizens who have no right to be in the UK.
Nationality changes, creating fairer access to British nationality.
Changes to bail and returns, which includes strengthening the early removal scheme for Foreign National offenders to remove them sooner than was the case previously.
These reforms sit alongside other important changes, including a world-leading migration and economic partnership with Rwanda. Further reforms from the Act will be implemented over the coming months and into next year as we seek to build and deliver a fair but firm asylum and immigration system.
Source Parliament, 28-06-2022, https://rb.gy/q1cwya
UK Humanitarian Protection Has Now Been Downgraded
New rules on humanitarian protection status will apply to claims made on or after 28 June 2022. The changes are another example of how the government’s New Plan for Immigration is creating a crueller, less efficient and more costly asylum system. Around 1,000 people a year are granted humanitarian protection. The Immigration Rules say that it is available to asylum seekers where, among other things, “substantial grounds have been shown for believing that the person concerned, if returned to the country of origin, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country”.
Currently, people who are recognised as being in need of humanitarian protection are granted five years’ permission to stay, as set out in paragraph 339Q(ii) of the Rules. After that, they can apply to stay permanently. The new rules will reduce humanitarian protection permission to the same length of time as “Group 2” refugees: those deemed by the government to be less deserving of protection for reasons including their inability to access a regular route to the UK.
Read more: Freemovement, https://rb.gy/atni8b
Nine in 10 People Refused Asylum in 2020 Free to Remain in UK
Nine in every 10 people who were refused asylum by the Home Office two years ago were free to remain in the country, an analysis has found. The disclosure has fuelled claims that Priti Patel’s plan to send asylum seekers to Rwanda is failing to address fundamental problems in the asylum system such as removals. The home secretary’s top civil servant raised eyebrows on Wednesday by claiming the Home Office loved “a good crisis”.
Figures released to the Guardian from the Oxford Migration Observatory show that 3,632 people who applied for asylum in 2020 were turned down and 314 were returned. That means up to 91% of those refused asylum in the UK were free to remain in the UK, compared with 81% in 2019 and 38% in 2013. The figures also show a dramatic drop in the numbers of refusals and returns.
Read more: Rajeev Syal, Guardian, https://rb.gy/gchfyh
Briefing: the Real State of the UK Asylum System
The United Kingdom’s asylum system has been described by the current Home Secretary as “broken”. There is some truth in that statement. In many ways, the asylum system is now in a parlous state. What the Home Secretary does not say is that it was she who broke it.
In this briefing we will take a look at the whole of the process, from the numbers claiming asylum to the decision-making process, the cost of the system, the volume and quality of decisions, the outcomes of appeals, the use of detention and the number of removals. The information is drawn mainly from the quarterly immigration statistics and transparency data for the year ended March 2022, the most recent available at the time of writing.
The picture the data presents is of a system that has been overwhelmed. Not by new arrivals but by mismanagement. The people arriving to claim asylum are overwhelmingly refugees and they will, eventually, build new lives for themselves in this country. But they must endure bureaucratic purgatory first, seemingly to cleanse them of the supposed sin of irregular arrival.
Read more: Freemovement, https://rb.gy/uzluhw
Briefing: What Rights do Refugees Have Under the Refugee Convention?
Asylum lawyers tend to focus on just one clause of the Refugee Convention: the definition of a refugee. This is the gateway to formal recognition as a refugee and is therefore of vital importance to any person seeking asylum. From this definition, set out at Article 1A(2) of the convention, all the other rights of a refugee flow.
But what are those other rights? This briefing focuses on the rights which are explicitly conferred on refugees by the Refugee Convention itself, at Articles 2 to 34. It is important to make clear that refugees are humans and they also therefore benefit from human rights protections in other international conventions and domestic laws, like the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Human Rights Act here in the UK.
The Refugee Convention effectively predates most of these human rights instruments. It is derived to a significant extent from legal instruments before, during and immediately after the Second World War and it was only the second convention agreed upon by the newly established United Nations.
Read more: Freemovement, https://rb.gy/do1flf
107 Vulnerable Asylum Seekers Have Died In Home Office Housing Since 2020
Dozens of asylum seekers who were officially recognised by the Home Office as vulnerable and potentially in need of protection have died in government accommodation, with previously undisclosed internal documents suggesting a number of the cases involved safeguarding failings. New data obtained in a joint investigation by the Observer and Liberty Investigates has found at least 107 deaths of asylum seekers who were provided with Home Office housing between April 2016 and May 2022, far more than officially admitted. Eighty-two have died since January 2020.
At least 17 people died by suicide or suspected suicide, according to analysis of Home Office records released under information laws. Half of those who have died since the start of 2020 (41) were flagged as having a “safeguarding element” – a label officials assign to individuals recognised as having vulnerabilities or needs such as a health problem. A department spokesperson denied that having a safeguarding flag meant a person needed protection. However, safeguarding is the term the Home Office uses to describe its responsibilities towards ensuring the safety of children and vulnerable adults in its accommodation.
Protests Across Spain After Massacre of Migrants in Melilla
Protests erupted across Spain on Sunday evening after the mass killing of at least 37 people. They died on Friday trying to enter the Spanish enclave of Melilla in north Africa—a colonial legacy—that borders Morocco. Moroccan security forces, acting in alliance with the Spanish National Police and the Civil Guard, crossed the barrier between Morocco and Melilla. They hit, beat to death and drove back migrants who had managed to break through to Melilla. This is the price of the European Union’s border regime—bloodied and pummelled corpses of desperate people.
Melilla and Ceuta, Spain’s other North African enclave, have the European Union’s only land borders on the African continent. Spain and Morocco seal the border with ten-metre iron fences, barbed wire, watchtowers and brutal repression of those who try to enter the EU without the official documents. Anti-racists held angry mobilisations in cities including Barcelona, ??Madrid, Valencia, Bilbao, Seville, Granada, Cádiz, Mataró and Zaragoza—and many more are planned for Monday and Tuesday.
Read more: Charlie Kimber, SWP, https://rb.gy/corudp
Home Office Plans to Tackle Backlog of 89,000 Asylum Cases
On Wednesday of last week, the House of Commons Home Affairs Committee heard evidence on the work of the Home Office from the department's two most senior civil servants, Permanent Secretary Matthew Rycroft and Second Permanent Secretary Tricia Hayes.
Among the many questions, Diana Johnson MP, the chair of the Home Affairs Committee, asked the officials what the Home Office's plan was to clear the growing asylum backlog, which now stands at 89,000 cases.
Tricia Hayes responded: "Our plan has two elements. One is, as I said earlier, that we are continuing to put more people into our asylum teams. We are, as part of our workforce planning, bringing more workforce in over the summer. […] We currently have 820 and we are on track to have 1,000 by September. Like many other operational workforces, we have had some issues with retention, but we are putting into place a new recruitment and retention allowance for our asylum caseworkers, which is intended to give us a more stable and permanent asylum caseworking team. Asylum caseworking is difficult. The productivity you get from a fully trained and experienced caseworker is very different from the productivity you get from somebody who has just come into the team. It is not massively surprising that bringing in lots of new people is not going to give us an immediate, overnight solution.
Read more: EIN, https://rb.gy/q1kl8b
Can EU Citizens Get Compensation for Comprehensive Sickness Insurance?
Comprehensive Sickness Insurance continues to hang over the heads of many EU citizens who, over the years, were told that they needed private health coverage for their residence in the UK to be lawful. The UK government’s insistence on this was always legally controversial, but it took until after Brexit for the EU Court of Justice to rule (in a case referred to it just before the UK’s departure) that CSI was not in fact required.
What are the implications of the ruling for EU citizens affected by the supposed CSI rule over the years? People were denied benefits, British citizenship and even protection against criminal deportation — not to mention spending money they didn’t need to. Even today, the government reserves the right to refuse naturalisation for past lack of CSI (even if it doesn’t in practice).
Read more: Freemovement, https://rb.gy/8po64e
Whether Income is “Lawfully Derived” to be Assessed Case by Case
In a refreshing example of the Upper Tribunal choosing not to lay down wid-ranging obiter guidance on limited facts having not heard relevant submissions, the headnote for Fatima (paragraph 1 (d) Appendix FM-SE: interpretation)  UKUT 155 (IAC) says simply: Interpretation of the phrase “lawfully derived” in paragraph 1 (d) of Appendix FM-SE is to be on a case-to-case basis. The drafter of the Rule did not see fit to provide a definition, and it would not be appropriate for the Tribunal to do so. The sponsor in this case had worked for an employer who had, unbeknownst to the sponsor, failed to make national insurance and tax contributions. This did not stop the income being lawfully derived, as “his income arose perfectly lawfully from lawful employment”.
Read more: Freemovement, https://rb.gy/yizftn
Factors to Consider in EU Law Shared Household Cases
The headnote to Sohrab and Others (continued household membership) Pakistan  UKUT 157 (IAC) provides a useful guide to the assessment of EU law extended family member cases based on shared membership of a household. It could perhaps make things clearer by spelling out more explicitly that “member of household” does not absolutely require continuous co-habitation.
To be a member of an EEA national’s household requires a sufficient degree of physical and relational proximity to the EEA national through living in the household of which the EEA national is the head, living together as a unit, with a common sense of belonging. There should be a genuine assumption of responsibility by the EEA national for the EFM. Questions of the commencement of the assumption of responsibility and the duration of dependency or household membership are relevant.
Read more: Freemovement, https://rb.gy/4zfvgx
Judge Takes “Points Based System” a Bit Too Literally
Although judges in the immigration jurisdiction should adopt the “balance sheet” approach to ECHR article 8 proportionality assessments, they must not ascribe points to factors weighing on either side of the balance. The judge in this case had assigned points out of 10 to each of the factors weighing for and against the removal of KB to Albania. With all the government’s talk of points based systems one can perhaps understand why a judge might have gone down this road. But it’s not actually a very good way of deciding cases.
The Upper Tribunal decision is worth reading for the elucidation and endorsement of the correct “balance sheet” approach. And for the finding in this trafficking case that where there was an accepted risk of being persecuted in the home area, it is incumbent on a judge to assess whether the actors of persecution might be motivated to pursue the appellant beyond the home area (paragraph 32). The headnote from KB (Art 8: points-based proportionality assessment) Albania  UKUT 161 (IAC):
Read more: Freemovement, https://rb.gy/5eayjx