No-Deportations - Residence Papers for All

                               News & Views Monday 17th November to Sunday 23rd November 2014

Obama Defies Republicans - Announces Immigration 'Amnesty'
President Barack Obama set himself on a collision course with Republicans in Congress last night after announcing unilateral measures that will enable five million undocumented migrants to live and work in America. In a prime-time address to the nation, Mr Obama announced that after six years of failing to pass an immigration reform bill through Congress, he was taking matters into his own hands and using presidential authority to reform America's "broken" immigration system.

At a stroke, Mr Obama fulfilled one of his earliest electoral promises but enraged Republicans who accused him of acting like "an emperor" and disregarding the Constitution, the Congress and the verdict of American people who handed him a drubbing at this month's midterm elections. Under the scheme migrants who have lived in the US for at least five years and have not committed a criminal offence will be given work permits and allowed to pay taxes. Their children will also be able to attend school without fear of being found out or deported.

Mr Obama described his executive actions as a "commonsense, middle ground" approach that walked the line between "mass amnesty... and mass deportation" of the estimated 11 million illegal immigrants in the US.
Read more: Peter Foster and Raf Sanchez, Telegraph, 21/11/14

UKHO: Operational Guidance Note: Eritrea
1.1 This document provides Home Office caseworkers with guidance on the nature and handling of the most common types of claims received from nationals/residents of Eritrea, including whether claims are or are not likely to justify the granting of asylum, humanitarian protection or discretionary leave. Caseworkers must refer to the relevant asylum instructions (AIs) for further details of the policy on these areas.

1.2 Caseworkers must not base decisions on the country of origin information (COI) in this guidance; it is included to provide context only and does not purport to be comprehensive.

1.3 The conclusions in this guidance are based on the totality of the available evidence, not just the brief extracts contained herein, and caseworkers must likewise take into account all available evidence. It is therefore essential that this guidance is read in conjunction with the relevant COI and any other pertinent data, such as country guidance caselaw.

Published on Refworld, <>21/11/14

Challenging the Climate of Hostility

As of 11th November 2014 there are a total of 3,915 bed spaces, in Immigration Removal Centres (IRCs) and Short Term Holding Facilities.

Immigration Act 2014, Foreign National Prisoners Facing Deportation

Free Legal Training Event by Kent Refugee Help

Sheona York & Richard Warren, the Kent Law Clinic: Bail Rights and deportation issues

Sue Powell, Kent Refugee Help: How to be a bail surety

Ewen Macmillan, Kent Refugee Help: Supporting a family fighting deportation

Ruhul Anam: Former detainee, voluntary advice worker: "How I turned my life around"

Monday 24th of November, 7:00pm 'The Friends Meeting House', Canterbury, 6 The Friars, CT1 2AS

[Nearly 1,000 Foreign National Prisoners who have completed their Custodial sentence remain in prison. If they were English nationals their continued imprisonment would be unlawful.]

The Immigration Act 2014 is the focal point of the Government's attack on foreign national prisoners and all those considered to be"outsiders" because of their immigration status. Foreign nationals who have committed an offence face the double punishment of automatic deportation if their prison term is 12 months or more.

The new powers restrict appeals rights and in particular, the use of family life arguments to appeal a deportation. Many foreign nationals have spent the majority of their life in the UK and have deep roots here. Forcibly returning them to a country of which they have only distant memories impacts severely on their lives and those of their partners and children. Those who cannot be deported immediately due to problems with documentation can look forward to spending years incarcerated, as immigration detention in the UK has no time limit. Some prisoners have been tortured in their countries. Their indefinite detention in both prisons and immigration removal centres can trigger further trauma.

The meeting is open to every one interested in helping foreign national prisoners and their families. This includes befriending and visiting a foreign prisoner and if appropriate standing bail for them to assist their release.

You do not need to be a lawyer to attend this exciting event. It is open to anyone interested in understanding more about the effects of the Immigration Act 2014 upon foreigner prisoners and their families. Hundreds of foreign nationals are detained in prisons across the UK with no time limit and no automatic review of their case. The Immigration Act strips appeal rights enforcing automatic deportation and restricts health care to all migrants. Additionally landlords will be obliged to check the immigration status of their tenants and so assume the role of immigration enforcement officers. This attack on "foreigners" has to be seen in the context of austerity measures, including unprecedented legal aid cuts and the Government's plan to replace the Human rights Act with a Bill of British Rights which will limit universal protection for all of us. Blaming immigrants for the savage cuts to jobs, services and welfare provision dilutes and diverts resistance and allows for the rights and resources we have taken for granted, to continue to be dismantled.

The training event led by an experienced immigration solicitor focuses on what we can do both as legal representatives and community activists to challenge the climate of hostility.

Please RSVP to: <>

Kent Refugee Help

Miah (Interviewer's Comments: Disclosure: Fairness)

[2014] UKUT 515 (IAC) (10 November 2014)

[Decision set aside - remitted to a different constitution of the FtT for the purpose of deciding on the merits the issue of whether the marriage in question is one of convenience and making a fresh decision]

Conduct of pre-decision interviews
(i) A decision that a marriage is a marriage of convenience for the purposes of regulation 2(1) of the Immigration (European Economic Area) Regulations 2006 is a matter of some moment. Fairness requires that the affected person must be alerted to the essential elements of the case against him.

(ii) In addition, those involved must be alert to the question of whether, in an unusual or exceptional case, anything further is required in the interests of fairness. There may be difficult, borderline cases in which fairness will require identification of the third party. These do not admit of general guidance or resolution and will have to be addressed on a case by case basis, guided by the overarching requirement of fairness and balancing all interests in play.

The making of the decision on the application
(iii) The Secretary of State's decision making process includes a process whereby comments, or opinions, of an interviewing officer are conveyed to the decision maker. In the generality of cases, this practice will not contaminate the fairness of the decision making process. The duty of the decision maker is to approach and consider all of the materials with an open mind and with circumspection. The due discharge of this duty, coupled with the statutory right of appeal, will provide the subject with adequate protection.

(iv) However, the document enshrining the interviewer's comments - Form ICV.4605 - must be disclosed as a matter of course. An appellant's right to a fair hearing dictates this course. If, exceptionally, some legitimate concern about disclosure, for example, the protection of a third party, should arise, this should be proactively brought to the attention of the Tribunal, for a ruling and directions. In this way the principle of independent judicial adjudication will provide adequate safeguards for the appellant. This will also enable mechanisms such as redaction, which in practice one would expect to arise with extreme rarity, to be considered.

1. By a decision made on behalf of the Secretary of State for the Home Department (the "Secretary of State") the Appellant herein, dated 02 July 2013, the application of the Respondent, a national of Bangladesh, aged 44 years, for a right of residence in the capacity of spouse of a EEA national exercising Treaty rights in the United Kingdom was refused. The basis of the refusal was the assessment of the Secretary of State's officials that the marriage under scrutiny was considered to be one of convenience. The Respondent's ensuing appeal to the First-tier Tribunal (the "FtT") succeeded. The Secretary of State appeals with permission to this Tribunal.

2. The main question raised by this appeal is an interesting one, the answer whereto could potentially affect the conduct of interviews in contexts other than that under consideration. It may be summarised thus: is a decision by the Secretary of State under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") that a marriage is one of convenience vitiated by procedural unfairness and, thereby, erroneous in law where the decision making process includes comments, or opinions, of the interviewing officer adverse to the subject's case which are conveyed to the decision maker but are withheld from the subject? Thus formulated, this appeal raises a classic question of common law procedural fairness. This is essentially the issue on which the FtT allowed the appeal and upon which permission to appeal was granted.

3. The subsidiary question raised by this appeal is also of some interest, as it bears on the Secretary of State's duty to the First-tier Tribunal under Rule 13 of the Asylum and Immigration Procedure Rules 2005. It may be framed thus: does the duty under Rule 12 encompass a requirement to disclose Form ICD4605, the "Interview Summary Sheet", in every case of this nature? The consequences of the new FtT procedural rules are addressed in [20] infra.

25. I have rejected the contention that the Secretary of State's decision making process was unfair and, hence, unlawful by virtue of the interviewer communicating adverse comments and opinions to the decision maker. Thus the Secretary of State's decision was in accordance with the law, from which it follows that the decision of the FtT to allow the Respondent's appeal cannot be upheld.

26. Thus I set aside the decision of the FtT and remit the appeal to a different constitution of the FtT for the purpose of deciding on the merits the issue of whether the marriage in question is one of convenience and making a fresh decision.


Children's Rights are Human Rights
Children must fully enjoy the protection offered by all international human rights treaties. Dignity and integrity of children are non-negotiable. Discrimination on any grounds cannot be tolerated. The UN Convention on the Rights of the Child (UNCRC) adopted in 1989 changed the way in which countries look at children as real rights holders. On 20 November 2014, we celebrate the 25th anniversary of the Convention. It has been ratified by all 47 Council of Europe member states.

Eliminating all forms of violence against children, including sexual violence, exploitation, corporal punishment, and promoting child-friendly services and systems, guaranteeing the rights of children in vulnerable situations and promoting child participation are among the key objectives of the Council of EuropeÕs Strategy on the rights of the child. All these objectives are squarely anchored in the UN Convention.

The entire Council of Europe is working hard to make sure that the governments respect childrenÕs rights in line with the UN and the Council of EuropeÕs standards.
Read more: Council of Europe, 19/11/14

Destitution, Intimidation . . . How Britain Shirks its Obligations to Asylum-Seekers

In the North of England there are dozens, probably hundreds of Syrians, some with children, who over the past year have waited and waited for their first interview, dumped in overcrowded slum housing on a meagre income.

This rise in numbers comes at a time when politicians and the media have constructed a toxic discourse around immigration. For the first time for many years the term 'asylum seekers' is again being demonised alongside 'illegals', 'migrants', 'foreigners', or 'immigrants'.

UK governments have been 'dispersing' asylum seekers from London and the South East to the old industrial areas of the North, the Midlands, Scotland and Wales since 2000. In 2012 the Home Office packaged up asylum housing as a market and awarded contracts to G4S, Serco and Reliance. Through 2013 and 2014 flows of refugees have been increasing in particular from war torn Syria, Eritrea and ongoing conflicts in Iraq and Afghanistan.
Read more: John Grayson, Open Democracy, 19/11/14

Asylum Research Consultancy (ARC) COI Update Volume 90
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 4th November and 17th November 2014 - Volume 90  <> here . . .

DR Congo: Police Operation Kills 51 Youth
Police in the Democratic Republic of Congo summarily killed at least 51 youth and forcibly disappeared 33 others during an anti-crime campaign that began a year ago, Human Rights Watch said in a report released today. ÒOperation Likofi,Ó which lasted from November 2013 to February 2014, targeted alleged gang members in CongoÕs capital, Kinshasa.

The 57-page report, ÒOperation Likofi: Police Killings and Enforced Disappearances in Kinshasa,Ó details how uniformed police, often wearing masks, dragged kuluna, or suspected gang members, from their homes at night and executed them. The police shot and killed the unarmed young men and boys outside their homes, in the open markets where they slept or worked, and in nearby fields or empty lots. Many others were taken without warrants to unknown locations and forcibly disappeared.

'Operation Likofi was a brutal police campaign that left a trail of cold-blooded murders in the Congolese capital,' said Daniel Bekele, Africa director at Human Rights Watch. 'Fighting crime by committing crime does not build the rule of law but only reinforces a climate of fear. The Congolese authorities should investigate the killings, starting with the commander in charge of the operation, and bring to justice those responsible.'
Read more: Human Rights Watch, 18/11/14

Church of England Urges End of 'Legal Limbo' for Asylum Seekers
In a sign that it is becoming increasingly concerned about the intractable nature of the political debate surrounding immigration, the church is warning that the use of indefinite detention is placing Òconsiderable stress on detainees as well as on their familiesÓ. In its submission to a parliamentary inquiry into immigration detention, the Mission and Public Affairs Council of the ArchbishopsÕ Council suggests that an Òautomatic bail hearing after seven and then 35 days Ð as provided for by law in 1999, but never brought into effectÓ Ð would be an improvement on the current situation, which leaves some detainees in a legal limbo.

The churchÕs decision to wade into the immigration debate puts it on a collision course with politicians. As both Labour and the Tories harden their rhetoric around immigration ahead of the general election, many in the senior echelons of the church have become increasingly dismayed at the way the issue has become a political football. "The main political parties have taken a judgment that they cannot say anything on this issue because they feel it will lose them votes by the million," said Jonathan Clark, bishop of Croydon, who chairs the Churches Refugee Network. "So it has been left to those who donÕt seek re-election to speak out."
Read more: Guardian, 15/11/14

Alemi, R (on the Application of) v SSHD

[2014] EWHC 3858 (Admin) (20 November 2014)

[Claimant suffering from a serious mental illness was unlawfully detained from midnight 23 May 2013 until his transfer to the psychiatric unit on 16 August 2013}

1) In these proceedings the Claimant alleges that he was unlawfully detained between 1 March 2013 and 16 August 2013. I received documentary evidence and heard oral argument in relation to that issue on 5 November 2014.

2) The pleadings also disclose a second potential issue for determination by the court namely whether or not it would be lawful for the Defendant to remove the Claimant from the United Kingdom to Belgium. I did not consider that issue on 5 November; at the handing down of this judgment I will make such further directions as may be necessary if that issue remains a live one.

3) In this judgment the word Defendant is used to mean the party sued and all persons making decisions on her behalf.

38) Mr Jacobs advanced the following submissions in support of his contention that the Defendant unlawfully detained the Claimant during the period 1 March 2013 to 16 August 2013. First, the Claimant was suffering from a serious mental illness during the whole of that period; the Defendant knew or should have known that this was the case. Second, the Claimant's condition could not be satisfactorily managed within detention; again, the Defendant knew or should have known this was the case. Accordingly, third, the detention of the Claimant during the specified period was a breach of the guidance issued by the Defendant. There were no exceptional circumstances in this case which justified detaining the Claimant at a detention centre. Fourth, the burden was upon the Defendant to prove that detention was unlawful and she had failed to discharge the burden upon her.

39) Mr Deakin accepts that the Defendant's guidance makes it clear that a person should not be detained (except in exceptional circumstances) if that person is suffering from serious mental illness and the illness cannot be satisfactorily managed within detention. Further, he accepts that a failure on the part of the Defendant to properly consider or apply detention guidance in respect of those suffering from a serious mental illness will constitute a public law error which would render detention unlawful (see his skeleton argument paragraph 60(d) at page 13). Mr Deakin submits, however, that the detention in this case was not unlawful because, throughout, the Defendant was acting upon medical advice and it was not until a few weeks, literally, before the Claimant's transfer to a secure psychiatric unit that the evidence persuaded the Defendant of the need for such a transfer.


44) I have asked myself, therefore, whether it was reasonably open to the Defendant to have on the material available up to 8 May 2013 that the Claimant was not suffering from a serious mental illness. Having reflected upon the matter I am not prepared to say that no reasonable Secretary of State properly directing herself on the material available could have acted as did the Defendant in this case. I acknowledge the powerful evidence of the history of suicide attempts and the incidents of self-harm but, to repeat, the Defendant was being advised that those events were not the consequence of a serious medical illness. Further, in this timescale he was supplied with no contrary evidence in behalf of the Claimant.

45) In my judgment, however, the picture presented to the Defendant changes completely once she had received the report of Dr Thomas. Dr Thomas's report was detailed and compelling. The options for the Defendant following its receipt were (a) to accept Dr Thomas's view and instigate enquiries with a view to the Claimant's transfer to a secure psychiatric unit or (b) obtain her own advice about the nature and extent of the Claimant's alleged illness. What actually occurred was Dr Tippu and Mr Connell assessed the Claimant for comparatively short time periods and adhered to views which they had previously expressed.

46) Dr Thomas is not a medical doctor. As is well known, however, chartered clinical psychologists are well equipped to offer expert opinion upon issues relating to mental illness. As Dr Thomas makes clear in the first page of her report she has a wealth of experience which equips her to offer an opinion in this case. The Defendant has adduced no evidence as to the expertise of Dr Tippu and Mr Connell. I am aware from the documentation that Mr Connell is a "clinical nurse specialist" and I am prepared to infer that his specialism is psychiatry. On any view, however, there is a dearth of evidence as to the true level of his expertise and there is no evidence which suggests that the Defendant made any enquiry as to his expertise. To repeat, there is no evidence before me as to the expertise of Dr. Tippu.

47) In my judgment a telling document as to the willingness of the Defendant to engage with the report of Dr. Thomas is the monthly progress report for 14 May 2013. This document was in similar form to those which preceded it and much of it was identical to the two earlier reports. The document does not mention Dr Thomas's report; in setting out the reasons why detention is to be maintained it says nothing about the Claimant's state of health. The detention review documents which followed 9 May 2013 are equally silent as to Dr Thomas's report.

48) I have reached the conclusion that no reasonable Secretary of State could have concluded that detention within a detention centre was in accordance with her published guidance once confronted with the contents of Dr Thomas's report. I say that notwithstanding that Mr Connell offered his own view in writing on 24 May 2014. I do not consider that the response provided by Mr Connell in his report of 24 May 2014 could, conceivably, have detracted from the views expressed by Dr Thomas. It follows that there came a point in time after receipt of Dr. Thomas's report when the Claimant's detention was unlawful.

49) What is the date upon which the Claimant's detention became unlawful? Obviously it did not become unlawful on the date Dr Thomas's report was received. Some time, necessarily, had to elapse for the report to be considered and acted upon. Dr Thomas was not suggesting that the Claimant be released. Her proposal was that he be transferred to a secure psychiatric unit. It is accepted by both parties that such a transfer could only be affected following a recommendation to that effect by two suitably qualified medical practitioners. Inevitably, therefore, some period of time would have elapsed before such opinions had been obtained and acted upon. That is what occurred, in effect, in early August 2013 once the Defendant had accepted that she should put in place a transfer to a secure psychiatric unit.

50) I cannot be precise about the time which would have elapsed, necessarily, before all necessary steps had been taken transfer to the Claimant but it seems reasonable to estimate that the process would have taken at least two weeks.

51) In the result I conclude that the Claimant was unlawfully detained from midnight 23 May 2013 until his transfer to the psychiatric unit on 16 August 2013.

52) Given the time constraints in producing this judgment I do not offer any view upon whether, assuming my conclusions expressed above are wrong, the Claimant was unlawfully detained for a shorter period.

53) At the commencement of the hearing before me I made it clear that I would adjudicate upon the issue of liability alone. I make it clear that nothing in this judgment precludes the Defendant from seeking to argue that the Claimant is entitled to nominal as opposed to substantial damages. All issues relating to damages will be considered, as appropriate, after a trial in the Queen's Bench Division.

R (on the Application of Khadija BA Fakih) v SSHD

[Imposing a NRPF condition on the Applicant's leave, unlawful]

1. On 8 October 2013 the Respondent granted the Applicant leave to remain for a period of 30 months. It is not in dispute that such leave was granted outside of the Immigration Rules. The Respondent imposed a condition on this leave prohibiting the Applicant from having recourse to public funds ("NRPF condition"). The Respondent agreed to reconsider her decision to impose such a condition, upon receipt of a pre-action protocol letter dated 19 December 2013 threatening judicial review proceedings. However, on 28 February 2014 the Respondent maintained her earlier decision. It is the lawfulness of the imposition of the NRPF condition on the Applicant's leave that is at the centre of these judicial review proceedings.

2. By way of background, the Applicant is a national of Yemen born in 1945. She arrived in the United Kingdom on 18 September 2011 with entry clearance as a visitor conferring leave to enter until 10 March 2012. She has resided with her British citizen daughter, Ms Al-Albeed, since that time.

3. On 10 March 2012 the Applicant made an application to the Respondent for leave to remain outside of the Immigration Rules. It was broadly submitted in this application that the Applicant's health had deteriorated significantly in the period shortly after her arrival in the United Kingdom and that she was dependent upon her daughter for financial and emotional support, as well as for day-to-day care. Her daughter was not at that time, and is still not, in employment and she receives Employment Support Allowance.

4. The Respondent refused this application by way of a decision of the 28 June 2012 and the First-tier Tribunal dismissed an appeal brought against it for reasons given in a determination of the 19 October 2012. Thereafter, both the First-tier, and Upper, Tribunals refused the Applicant permission to appeal. Undeterred by this the Applicant brought an application for judicial review before the Administrative Court challenging the decision of the Upper Tribunal refusing to grant her permission to appeal.

5. Whilst these judicial review proceedings were ongoing the Respondent gave further consideration to the Applicant's case and made the decision of 8 October 2013 referred to in paragraph 1 above.

112. For all the reasons given above [in the full judgement], I find the Respondent's decisions of 8 October 2013 and 28 February 2014, imposing a NRPF condition on the Applicant's leave, to be unlawful and I consequently quash those decisions.

Last updated 22 November, 2014