News & Views Monday 30th March to Sunday 5th April 2020

US: Coronavirus Economic Relief Package Excludes Undocumented Workers

The United States government’s US$2 trillion economic package passed in response to COVID-19 contains important protections but will leave many low-income people unable to afford life necessities, Human Rights Watch said today. The urgency of the crisis demanded immediate if imperfect relief, but Congress should address these shortcomings in subsequent legislation.

The emergency Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed on March 27, 2020, includes more worker and family protections than earlier proposals. However, the relief is temporary, despite the expected long-term impact of COVID-19 on the economy, and excludes informal and undocumented taxpaying workers. It also provides billions of dollars in public support to large companies without sufficient public oversight or restrictions.

“The CARES Act is an important step, but not enough money will get to people who most need it, and it may not tide people over for very long,” said Lena Simet, senior poverty and inequality researcher at Human Rights Watch. “Congress should enact other measures to reduce people’s bills, and extend these benefits to informal workers, or many will struggle to keep their families housed and fed.”

Read more: Human Rights Watch,

You Can Now Raise New Matters Before the Upper Tribunal

In Birch (Precariousness and mistake; new matters : Jamaica) [2020] UKUT 86 (IAC) the Upper Tribunal looks at the “precarious leave” provisions where a person wrongly believed that they had indefinite leave to remain. It also identifies a loophole – a term not used without hesitation, but it is difficult to see the legislative intention for the difference – which allows appellants to introduce “new matters” in appeals before the Upper Tribunal where this would not otherwise have been possible before the First-tier.

Precarious leave in human rights cases: Where a person is relying on family or private life rights in an immigration case, the general rule is that those rights will carry less weight if the person’s immigration status was “precarious” at the time the private or family life was being developed. This is now set out in primary legislation at section 117B(5) of the Nationality, Immigration and Asylum Act 2002, among a list of factors to which judges must have regard in immigration appeals. What does “precarious” mean? Anything less than settled status, or indefinite leave to remain. So held the Supreme Court in Rhuppiah v SSHD [2018] UKSC 58.

Relationships created and life lived whilst a person is temporarily in the UK should therefore be accorded less significance in the context of a human rights claim than if they had no limit on their leave to remain. But what if a person thinks they have indefinite leave to remain, but in fact hold a lesser more impermanent form of leave?

Read more: Freemovement,

European Commissioner Calls For Release of Immigration Detainees During Covid-19 Crisis

Dunja Mijatović, Commissioner for Human Rights:  “I call on all Council of Europe member states to review the situation of rejected asylum seekers and irregular migrants in immigration detention, and to release them to the maximum extent possible.

In the face of the global Covid-19 pandemic, many member states have had to suspend forced returns of persons no longer authorised to stay on their territories, including so-called Dublin returns, and it is unclear when these might be resumed. Under human rights law, immigration detention for the purpose of such returns can only be lawful as long as it is feasible that return can indeed take place. This prospect is clearly not in sight in many cases at the moment. Furthermore, immigration detention facilities generally provide poor opportunities for social distancing and other measures to protect against Covid-19 infection for migrants and staff.

Releases have been reported in several member states, including Belgium, Spain, the Netherlands and the United Kingdom, with the latter country having just announced a review of the situation of all those in immigration detention. It is now important that this process continues and that other member states follow suit. The release of the most vulnerable should be prioritised. Since the immigration detention of children, whether unaccompanied or with their families, is never in their best interest, they should be released immediately. The authorities of member states should also refrain from issuing new detention orders to persons who are unlikely to be removed in the near future.

Member states should also ensure that those released from detention are given appropriate access to accommodation and basic services, including health care. This is necessary to safeguard their dignity and also to protect public health in member states.

The release of immigration detainees is only one measure member states can take during the Covid-19 pandemic to protect the rights of persons deprived of their liberty more generally, as well as those of asylum seekers and migrants”

Council of Europe,

Portugal to Treat Migrants as Residents During Coronavirus Pandemic

All migrants and asylum seekers currently living in Portugal are to be treated as permanent residents during the coronavirus crisis, the government has announced.

The changes, announced on Saturday, will ensure foreigners who are still in the middle of applying for official documentation can still access life-saving public services.

They will need only to provide evidence of an ongoing residency request before they can use the country’s health service, welfare system, bank accounts, and work and rental contracts.

Claudio Veloso, spokesperson for the Ministry of Internal Affairs, said the new rules would apply from Monday.

"People should not be deprived of their rights to health and public service just because their application has not yet been processed," he told the Reuters news agency. "In these exceptional times, the rights of migrants must be guaranteed."


Another Cutback in the Rights of Migrant Victims Of Domestic Abuse

The case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of domestic abuse, and in appeal rights more generally. The Upper Tribunal has ruled that the Home Office can simply refuse to engage with a human rights claim which is not made in the particular way the department wants it made. When refusing to engage with a human rights claim submitted in the “wrong” format, the Home Office is not refusing that claim, and therefore there is no right of appeal. Some migrants will have to make very difficult decisions as a result.

Who has a right of appeal? Before diving into the case and its consequences, a quick recap on section 82 of the Immigration Act 2014. Pursuant to that section: (1) A person (“P”) may appeal to the Tribunal where— (a) the Secretary of State has decided to refuse a protection claim made by P, (b) the Secretary of State has decided to refuse a human rights claim made by P, or (c) the Secretary of State has decided to revoke P’s protection status

It is also worth reiterating that the Home Office does not consider an application for leave to remain on the basis of domestic abuse to be a human rights claim.

Read more: Freemovement,

High Court Orders Home Secretary to House Asylum Seeker Due to Covid-19

The High Court has ordered the Home Secretary to give a homeless former asylum seeker accommodation and support to self-isolate during the coronavirus pandemic.

The urgent injunction came after an Asylum Support Tribunal judge urged the Home Office to house the young man who was sleeping in a park and begging to survive. She had asked the Home Office how destitute asylum-seekers could be refused accommodation when they cannot travel or leave the UK because of Covid-19. Despite the pandemic, Home Office officials have not announced that denials of accommodation to destitute asylum-seekers are suspended.

The injunction was granted to a young man from the Horn of Africa. After months of homelessness, Duncan Lewis helped him ask the Home Office for temporary accommodation. We argued that as a former asylum-seeker he needed to be housed to help him prepare fresh representations to stay in the UK. Immigration officials refused on the grounds that he needed to make the asylum submissions first. By the time he appealed to the Tribunal, the Government had called on everyone to stay at home. Asylum Support Judge Verity-Smith directed that that the appeal would be allowed because the Covid-19 pandemic meant the asylum-seeker could not travel or leave the UK, and should instead be socially isolating. The judge gave the Home Office a few days to defend the case.

The Home Office immediately withdrew their decision, but still did not accommodate the young man. He was forced to go on sleeping in the park. So a claim for judicial review was launched, with an urgent request for an order to the immigration officials to find him a place to stay. Yesterday 26 March 2020, Lieven J granted that request, saying that our client “is in a desperate situation with the onset of Covid-19. He cannot return to [his country of origin] and he is supposed to be socially isolating. The balance of convenience plainly lies in granting interim relief.”

This case is helpful to show that given the current Covid-19 pandemic, destitute failed asylum seekers are eligible for Section 4 Asylum Support, even those without outstanding further submissions.

Dunvsn Lewis:

Home Office Put Hold on Evicting Asylum Seekers During Lockdown

The Home Office will stop evicting asylum seekers from government accommodation for the next three months while the UK remains in coronavirus lockdown, the British Red Cross has said. Home Office minister Chris Philp wrote to the charity on Friday to confirm that people would not be asked to leave their asylum accommodation once their claim or appeal had been decided.

The move, which will be reviewed in June this year, comes in response to measures introduced this week ensuring people do not leave their homes unnecessarily to prevent the spread of Covid-19. In a letter to the charity, Philp said: “The practical outcome is that those who would ordinarily have their support stopped because their asylum claim or appeal has been rejected, will remain accommodated.” He said that those who had been granted refugee status - and so would normally be required to make their own arrangements - would also be able to remain in their current accommodation. “I expect this decision to considerably relieve pressures on local authorities,” he added.

Read more: Aaron Walawalkar, Guardian,

Upper Tribunal Says No Duty of Candour on Home Office in Statutory Appeals

In Nimo (appeals: duty of disclosure : Ghana) [2020] UKUT 88 (IAC) the Upper Tribunal, consisting of Mr Justice Lane and Mr Ockelton, has held that the duty of candour applying to parties in judicial review proceedings does not apply in statutory appeals and there is no obligation in marriage of convenience cases for the Home Office to disclose Form ICD.4605, which sets out the interviewer’s comments: (1) In an immigration appeal, the Secretary of State’s duty of disclosure is not knowingly to mislead: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59, citing R v SSHD ex parte Kerrouche No 1[1997] Imm AR 610. (2) The Upper Tribunal was wrong to hold in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that, in every appeal involving an alleged marriage of convenience, the interviewer’s comments in the Secretary of State’s form ICD.4605 must be disclosed to the appellant and the Tribunal. No such general requirement is imposed by the respondent’s duty of disclosure or by rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

Although the tribunal does not say so (rather unhelpfully) there is still surely an obligation on the Home Office to serve verbatim interview notes, as had occurred in this case. The common law system of case precedence does not formally apply in tribunal proceedings but judges are normally loathe to simply reverse an earlier decision just because they disagree with it. Apparently the McCloskey Exception applies here.

Read more: Freemovement,