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                               News & Views Monday 3rd November to Sunday 9th November 2014

Home Secretary Loses Appeal on 36,000 Asylum Damages
Home Secretary Theresa May has failed in an attempt to overturn a £36,000 damages award made to a failed asylum seeker for wrongful imprisonment. Nemah Shehadeh, of Petershill Drive, Glasgow, considers herself to be a stateless Palestinian, although the Home Secretary regards her as a Jordanian national, Shehadeh was granted visas to enter Britain in 2000, 2001 and 2002 as a visitor but subsequently overstayed. She was arrested at Heathrow Airport, London, in 2005 attempting to fly to Canada with a false passport. She was sentenced to four months imprisonment for offences stemming from the incident and recommended for deportation.

Shehadeh was subsequently detained from December 2006 until August 2009 and has since made a fresh claim for asylum on the basis she has converted to Christianity. Last year a judge held she was unlawfully detained for a year by immigration authorities from August 2008 until August 2009 when she was freed on bail.

Lord Tyre awarded her damages and the Secretary of State appealed against the ruling to three judges at the Court Of Session, Edinburgh. But Lord Drummond Young, sitting with Lady Dorrian and Lord Philip, said Lord Tyre was "fully justified" in concluding that from August 2008 onwards the immigration authorities were in breach of legal principles that govern the lawfulness of detention in such circumstances. The Home Secretary also claimed the amount of damages awarded was excessive, but the appeal judges also rejected that argument.

Source: Dave Finlay, Herald, 07/11/14


California Justice Measure Helps Immigrants
Under federal law, some crimes must be punishable by at least one year to result in deportation of the offender. Proposition 47, combined with a bill signed by Governor Jerry Brown in July, ensures that a minor conviction for shoplifting, forgery, fraud, petty theft, receipt of stolen property, or – most significantly – simple possession of marijuana will no longer trigger deportation for a person who is otherwise in the United States legally.

Nationwide over 375,000 deportations since 2003 have involved people whose most serious conviction was for a drug offense. In these cases, those deported often end up doubly punished: on top of serving long prison sentences in the US, they experience permanent exile from their US-based families and from the country they consider home.

Even after the success of this ballot initiative in California, many will still continue to suffer such treatment by virtue of being convicted for a minor crime in another state under still unreformed sentencing laws. California's move does not lessen the need for reforming federal immigration laws. Indeed, the US Congress should repeal draconian provisions put into effect by several pieces of legislation – from the Anti-Drug Abuse Act of 1988 to the Illegal Immigrant Reform and Responsibility Act of 1996 – that mandate detention and deportation and deny authorized immigrants with convictions an opportunity to argue for a second chance.
Clara Long, Human Rights Watch, 05/11/14


Cushnie, R v Secretary of State for Health

[2014] EWHC 3626 (Admin) (05 November 2014)

[Judicial review succeeds in part - there was a breach by the Secretary of State of the public sector equality duty in the process leading up to the making of the Regulations]

Introduction
1) In this claim for judicial review the claimant challenges provisions of the National Health Service (Charges to Overseas Visitors) Regulations 2011 (SI 2011 No. 1556) ("the Regulations"), in particular regulation 11(c).

2) In brief, the Regulations provide, so far as material, that former asylum claimants are entitled to NHS treatment free of charge only if they are receiving accommodation and support from the Home Office pursuant to certain statutory provisions. The claimant submits that he would qualify for such support but for the fact that he is disabled and requires help with personal care. Under the relevant legislation this means that the support he receives must come not from the Home Office but from a local authority. As a result, the claimant contends, he has been refused important medical treatment free of charge which he cannot otherwise afford. His main grounds of challenge are that the Regulations discriminate against people like him on grounds of disability, contrary to Article 14, read with Article 8, of the Convention rights, as set out in Sch. 1 to the Human Rights Act 1998; and that, in making the Regulations, the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010.

3) Originally the claim arose out of an alleged refusal of treatment in August 2013, when the Regulations were applied to the claimant by the relevant local health service authorities in the area where he was then living. The claim was therefore originally issued against the Bristol Clinical Commissioning Group and the University Hospitals Bristol NHS Foundation Trust. However, since he has been placed outside the Bristol area, the claim against the Commissioning Group and the Trust has been withdrawn. Permission to bring this claim for judicial review against the Secretary of State was given by Lang J at a renewed oral hearing on 21 May 2014.

Conclusion
117) For the reasons I have given this claim for judicial review succeeds in part: there was a breach by the Secretary of State of the public sector equality duty in the process leading up to the making of the Regulations. I will consider counsel's submissions as to the form of any remedy which the Court should grant to reflect this judgment.

http://www.bailii.org/ew/cases/EWHC/Admin/2014/3626.html


Asylum Research Consultancy COI Update Volume 88
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 22nd October and 4th November 2014 - Volume 89  <>here . . .


Human Rights – at the Government's Discretion

There is more to the Tories' proposals on human rights and free movement than mere electioneering.

The October 2014 Conservative party conference was dominated by justice minister Chris Grayling's announcement that a future Conservative government will repeal the Human Rights Act, replace it with a British Bill of Rights and Responsibilities, and ignore unwelcome rulings of the European Court of Human Rights at Strasbourg. A fortnight later, government sources reported that prime minister David Cameron was saying that immigration was a 'red line' issue for Britain in Europe. He was said to be urgently considering an 'emergency brake' on the free movement of its citizens, one of the founding principles of the European Union, in order to close Britain's borders to citizens of the EU's eastern states.

Is there anything behind these proposals other than a desperate attempt to placate the UKIP tendency of the Tory Right? The proposals represent a huge success for the anti-European, anti-foreigner Right, which in the past two years has won the promise of an 'in-out' referendum in 2017 on Britain's membership of the EU, a new protocol to the European human rights Convention tightening criteria and making access to the Court more difficult, further restrictions on foreign offenders' family life rights and reduced welfare protection for EU citizens in Britain. The corporate press were jubilant at the prospect of the 'End of human rights farce' (Mail), 'End of human rights madness' (Express), and putting 'Rights Act in dustbin of history' (Sun). But the Telegraph's Peter Oborne[1] argued that the Human Rights Act embodies 'values – freedom of speech, the right to private property, personal liberty etc – that are exquisitely Conservative', and gives 'a wide range of protections against the power of the State that all Conservatives should welcome'. An anonymous, ironic tweet on the proposal to repeal the Human Rights Act read: 'Can't decide which right I hate most – life, liberty, free speech?' So how and why have the Tories managed so successfully to demonise human rights?
Read more: Frances Webber for IRR, <> 30/10/14


R (on the application of E) v SSHD

(IJR) [2014] UKUT 492 (IAC) (22 September 2014)

[Application for judicial review granted]

1. This is a substantive hearing of this application for judicial review, following the grant of permission, by Upper Tribunal Judge Gleeson. The applicant was born on 27 April 1975. She entered the United Kingdom in February 2002 with a student visa. She was then aged 26. During a period of extant student leave she sought further leave to remain on the basis of her medical condition - she suffers from HIV Aids - but that was refused and her medical condition is really largely irrelevant to the circumstances with which I now have to deal. Suffice it to say that further leave was granted to 25 October 2010 as a student. It appears to me clear that, at a time prior to 25 October 2010, it would have been open to the applicant to make a further application for leave. Such an application was open to her because she had been offered a postgraduate degree course leading to a Masters degree which was capable at any rate of falling within the Immigration Rules and would have permitted her to apply to extend her leave. It is impossible to say what then would have happened.

17. It is not as if she was inactive because on 4 October 2010 she had expressly raised the problem with the Secretary of State to which she had not received a reply. This is all significant material that the Secretary of State was bound to take into account when she considered the case on 16/17 July 2013. If the letter itself of 16/17 July 2013 was inadequate because it did not deal with the 50 pages of material that had been provided, it was certainly inadequate insofar as it did not deal with the circumstances which I have set out which were argued by the applicant in her application. It follows that the letter of 12 June 2014 which sought to make good the deficiencies of July of the previous year was in itself inadequate to counter the application for judicial review and does not make out a case that relief should be refused because a lawful decision has post-dated the application for judicial review. Accordingly, I grant the application for judicial review.
Full judgement here . . . .


Ali, R (on the application of) v SSHD (S3C Extended Leave: Invalidation)
(IJR) [2014] UKUT 494 (IAC) (8 October 2014)

Leave that has been extended by virtue of section 3C of the Immigration Act 1971 is invalidated by section 10(8) of the Immigration and Asylum Act 1999 where a decision is made under section 10 to remove the person having such leave.
Read the full decision here . . . .


 

Control/Restraint Techniques Used in Forced Removals are Lawful
The physical restraint of persons being removed from the UK by aircraft is subject to a sufficient framework of safeguards to fulfil the state's obligations under Articles 2 and 3 of the European Convention on Human Rights. Further, the decision of the Home Secretary not to publish aspects of the applicable policy on the use of such control and restraint is lawful.

Read more: Michael Deacon, UK Human Rights Blog, 07/11/14


Third-country nationals who have been duly heard on the illegality of their stay need not necessarily be heard again before the adoption of a return decision

The reason is that a return decision is closely linked to the decision determining that a stay is illegal

In today's judgment, the Court states first that EU law1 provides a detailed framework for the safeguards granted to third-country nationals as regards return decisions, since it lays down the formal requirements for return decisions and requires Member States to put in place effective remedies against those decisions. On the other hand, EU law does not specify whether, and under what conditions, observance of the right to be heard (which is inherent in the general principle of respect for the rights of the defence) is to be ensured, nor does it specify the consequences of an infringement of that right.

The Court then states that, once the competent national authorities have determined that a third-country national is staying illegally in the national territory, they are, subject to exceptions laid down in EU law referring the matter back to national law, under an obligation to adopt a return decision with regard to the third-country national, within a fair and transparent procedure. The consequence of that obligation is that Member States must, first, explicitly make provision in their national law for the obligation to leave national territory in cases of illegal stay and, second, ensure that the person concerned is properly heard within the procedure relating to his/her residence application or, as the case may be, on the illegality of his/her stay. That being the case, given that the adoption of a return decision is a necessary consequence of the decision determining the stay of the person concerned to be illegal, where the national authorities are contemplating the simultaneous adoption of a decision determining a stay to be illegal and a return decision, those authorities need not necessarily hear the person concerned specifically on the return decision, since that person had the opportunity effectively to present his/her point of view on the question of whether the stay was illegal and whether there were grounds which could, under national law, entitle those authorities to refrain from adopting a return decision.

Court of Justice of the European Union

Judgment in Case C-166/13


EU Migrants add 20bn to UK Economy in Just a Decade

Highly skilled migrant workers from the European Union have provided a £20bn boost to Britain's finances over a decade by paying far more in taxes than they claim in benefits, fresh research discloses today.

EU migrants who arrived since 2000, including citizens from new member states such as Poland, had contributed more than £20bn between 2001 and 2011. Migrant workers from the EU15 countries, which include Germany and France, paid 64 per cent more in tax than they received in benefits. New arrivals from Central and Eastern European "accession" countries contributed 12 per cent more than they took out.
Read more: Nigel Morris , Independent, <>04/11/14


EDM 465: Convention On Gender-Based Violence At Work

That this House notes the UN Day for the Elimination of Violence Against Women on 25 November 2014; further notes with concern that gender-based violence is present in every society in the world and that globally one in three women will be beaten or sexually abused in their lifetime and that this occurs everywhere, even in the workplace; further notes that while some International Labour Conventions, particularly No. 111 on gender equality and Convention No. 189 and Recommendation No. 200, refer to the issue of violence against women, they do not adequately address all forms of gender-based violence at work including prevention and protection of affected workers; and calls for the Government to take action on the UN Day for the Elimination of Violence Against Women by giving its support to the creation of a new ILO Convention specifically on gender-based violence at work and by requesting that this be on the agenda of the next meeting of the ILO Governing Body.

Sponsored by 8 MPs - House of Commons: <> 30.10.2014


Continuing Conflicts that Create Refugees - October 2014

7 actual or potential conflict situations around the world deteriorated and none improved in October 2014, according to CrisisWatch N°135

Burkina Faso: President Blaise Compaoré resigned following intense pressure and violent protests against a possible extension to his 27-year rule. On 30 October, after several days of protests that left thirty dead, demonstrators against a proposed constitutional amendment to extend the presidential two-term limit stormed the parliament, setting it ablaze. The army stepped in but appears divided over who has taken the reins of power – army chief General Honoré Traoré and the Presidential Guard's second-in-command, Colonel Isaac Zida, have both claimed to be head of state. It also remains unclear whether street protestors and political parties alike are ready to accept the 12-month military transition the army has announced.

Central African Republic: Escalating violence in Bangui and deepening political animosities once again shook the Central African Republic's fragile transition. The mobilisation of anti-balaka militias following a 7 October grenade attack resulted in violent clashes with Muslim residents that left several dead. Outside the capital violence continues to plague the central and western regions where French "Sangaris" forces clashed with ex-Seleka fighters and where banditry is on the rise. President Catherine Samba-Panza appears increasingly isolated amid persistent doubts over her appointment of Mahamat Kamoun as prime minister and an outcry following the disappearance of a significant tranche of Angolan financial aid.

Yemen: Huthis continued their advance, bringing the country's political transition to the brink of collapse. A late September UN-brokered peace and power-sharing agreement, aimed at preserving a nominal political process, appears to have little real impact. The Huthis consolidated their control in the north following their mid-September seizure of the capital, Sanaa, and expanded into central Yemen where hundreds were killed in clashes with their rivals. On 31 October the Huthis and their tribal supporters issued an ultimatum to the president to form a new government in 10 days or face further escalation. Southern separatists have seized the opportunity to renew their call for independence, holding large-scale rallies and giving the government until 30 November to remove all employees and security forces from the south.

Lebanon: Syria-based jihadi group Jabhat al-Nusra expanded its war of attrition with Hizbollah by attacking several of the group's strongholds and leaving dozens dead. Meanwhile, scores were killed in and around Tripoli in late October when the army clashed with Sunni militants. Army raids in northern Lebanon, Saida and Beirut followed, with tens of alleged "terrorists" arrested.

Venezuela: Clashes between police and pro-government militias, otherwise known as "colectivos", in Venezuela's capital left five militiamen including their leader José Odreman dead and raised concerns over the government's ability to exert its control. The subsequent dismissal of the Interior and Justice Minister Miguel Rodriguez Torres, accused by the colectivos of assassinating Odreman, and ongoing calls for the dismissal of the National Assembly president have only deepened the regime's instability. Meanwhile, Venezuela's economy continued to deteriorate, with a rapid fall in oil prices raising the spectre of a default on the country's external debt. (See our latest briefing on Venezuela's political crisis.)

Mexico: The disappearance of 43 students in Guerrero, apparently at the hands of local police with links to organised crime, triggered massive, sometimes violent, protests. The federal government has arrested a number of suspects and uncovered several mass graves, but so far failed to find the students or identify their remains. The case appears to expose yet again local and perhaps state-level complicity with criminal groups, as well as the failure of the federal government to control violence and widespread impunity.

Kasmir: Hostilities between India and Pakistan continued along Kashmir's Line of Control (LoC) and the working boundary dividing Pakistan and India-administered Kashmir, with each side accusing the other of unprovoked firing. The clashes were accompanied by unusually aggressive rhetoric from the Indian government, causing concern that the Pakistani government, currently engaged in a power struggle with the military over the country's India policy, will see its political options narrow further.

Iraq: According to casualty figures released today by UNAMI, a total of at least 1,273 people were killed and another 2,010 were injured in acts of terrorism and violence in October.The number of civilians killed was 856 (including 139 civilian police), while the number of civilians injured was 1,490 (including 172 civilian police. A further 417 members of the Iraqi Security Forces were killed and 520 were injured (including Peshmerga, SWAT and militias fighting alongside IA / not including casualties from Anbar Operations).

Improved Situations: None

November 2014 Outlook

Conflict Risk Alert: Burkina Faso, South Sudan, Yemen

South Sudan: After a rainy season lull, South SudanÕs warring parties are preparing for major offensives with the Sudan PeopleÕs Liberation Army-In Opposition (SPLA-IO) this week launching attacks on Bentiu, capital of oil-producing Unity state (see our recent Conflict Alert). Hardliners in the government and the SPLA-IO appear determined to settle the conflict through war. Despite some signs of progress, nine months of peace talks have seen few results; instead, militias and self-defence forces are proliferating as their interests splinter, with many not effectively under the command and control of either main faction. Renewed conflict risks exacerbating widespread displacement and famine, as well as precipitating more atrocity crimes.

Conflict Resolution Opportunity: None

Download the full report here <>CW135

Last updated 7 November, 2014