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News & Views Monday 2nd March to Sunday 8th March 2020

An Immigration Decision Based Upon a Prior Unlawful Decision is Itself Also Unlawful

The Appellant, DN, was a Rwandan refugee and former offender who was the subject of a deportation order made pursuant to delegated legislation which deemed certain offenses to be particularly serious and those who had committed them to constitute a threat to the community.   Consequent on the deportation order, DN was detained. However, the delegated legislation, as it subsequently transpired, had been ultra vires.

The Intervener and Appellant submitted, and the Supreme Court accepted, that where a deportation order is unlawfully made, then, because the deportation order bears upon the decision to detain (indeed detention depends upon the decision then the order to deport), the detention authority is itself vitiated by material public law error.  That is so even if (as occurred in DN’s case) the deportation order was, before the detention, (erroneously) upheld on appeal by the Tribunal.  DN was unlawfully detained.

This case is important confirmation that a decision based upon a prior unlawful decision is itself also unlawful. The Supreme Court rejected an attempt by the Secretary of State for the Home Department to narrow the application of the Lumba and Mighty principle (ie that a decision to detain flawed by material public law error cannot lawfully authorise detention). This case is of particular importance to immigration detainees, whose administrative detention is often based upon prior immigration decisions.  This judgment confirms that R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842 is wrongly decided.

Source: Doughty Street Chambers,

Neglect and Gross Failures Contributed to Death of Prince Fosu in Immigration Detention

The inquest into the death of Prince Kwabena Fosu has concluded today 02/03/2020, finding neglect contributed to his death, with serious failures by the Home Office and across all the agencies in immigration detention, as well as failures by police who sent him there. Prince died at Harmondsworth Immigration Removal Centre (IRC) on the morning of 30 October 2012, in a shocking example of wholesale system collapse. The medical cause was "sudden death following hypothermia, dehydration and malnourishment in a man with psychotic illness". Prince, a Ghanaian national, was 31 years old. He is survived by his wife, child and parents.

Prince was experiencing a psychotic episode which an independent psychiatrist told the inquest was so obvious it did not require psychiatric expertise. Six days of purported checks every 15 minutes showed no positive evidence that Prince had eaten, drunk or slept and that he was naked. Both detention and medical staff recorded this, and that Prince was often lying on the cold concrete floor, in unsanitary conditions, behaving ‘bizarrely’, not communicating with anyone and with no bedding or mattress. His bedding had been removed on the first day leaving him with nothing soft to sit or lie on and there was nothing else in his room save for it being smeared with his own faeces, urine and food debris.

Even so, four GPs, two nurses, two Home Office contract monitors, three members of the Independent Monitoring Board and countless Detention Custody Officers and managers who visited him failed to take any meaningful steps. Prince was not referred for a mental health assessment and his capacity to control his behaviour was not even considered. As one member of the Independent Monitoring Board (IMB - voluntary detention visitors) later told the jury, “Mr Fosu died in plain sight. We let him down big time”. Three of the doctors have been referred to the General Medical Council.

Read more: INQUEST,

Restricted Leave; Indefinite Leave to Remain

(i) A decision of the Secretary of State not to grant indefinite leave to remain to a person subject to the restricted leave policy (“the RL policy”) does not normally engage Article 8 of the European Convention on Human Rights.  However, Article 8 may be engaged by a decision to refuse to grant indefinite leave to remain where, for example, the poor state of an individual’s mental and physical health is such that regular, repeated grants of restricted leave are capable of having a distinct and acute impact on the health of the individual concerned.

(ii) Once Article 8 is engaged by a decision to refuse indefinite leave to remain under the RL policy, the import of Article 8 will be inherently fact-specific, and must be considered in light of the criteria set out in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190.  The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law.

(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence.  A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement.

(iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3).

(v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act.

EU Citizens’ Rights During the Brexit Transition Period

The main takeaway is that throughout the transition period, until 31 December 2020, almost all EU rules will continue to apply in the UK. The jurisdiction of the Court of Justice of the European Union will continue until the end of the transition period. The four freedom: the freedoms of movement, services, capital and goods will continue until the end of the transition period. This means the UK will remain part of the customs union and [single] market until 31 December 2020 and British citizens will continue to be able to move freely around the EU and vice versa.

More importantly EU nationals and their family members in the UK throughout the transition period should not be asked for proof of settled or pre-settled status to access healthcare, to rent property or to gain employment until 1 January 2021. An EU, EEA or Swiss passport or national identity card, or a residence card issued by the Home Office if someone is the family member of an EU, EEA or Swiss citizen, is sufficient to show that someone is lawfully in the UK and lawfully entitled to work and rent property until the end of the transition period. The Brexit transition period ends on 31 December 2020, unless extended by mutual agreement.


New Iran Country Guidance - Converts to Christianity

1. This country guidance applies to protection claims from Iranians who claim to have converted from Islam to Christianity.

2.  Insofar as they relate to non-ethnic Christians, this decision replaces the country guidance decisions in FS and Others (Iran - Christian Converts) Iran CG [2004] UKIAT 00303 and SZ and JM (Christians - FS confirmed) Iran CG [2008] UKAIT 00082 which are no longer to be followed.

3.  Decision makers should begin by determining whether the claimant has demonstrated that it is reasonably likely that he or she is a Christian.  If that burden is discharged the following considerations apply:

i) A convert to Christianity seeking to openly practice that faith in Iran would face a real risk of persecution.

ii)  If the claimant would in fact conceal his faith, decision-makers should consider why.  If any part of the claimant’s motivation is a fear of such persecution, the appeal should be allowed.

iii) If the claimant would choose to conceal his faith purely for other reasons (family pressure, social constraints, personal preference etc) then protection should be refused. The evidence demonstrates that private and solitary worship, within the confines of the home, is possible and would not in general entail a real risk of persecution.

4. In cases where the claimant is found to be insincere in his or her claimed conversion, there is not a real risk of persecution ‘in-country’. There being no reason for such an individual to associate himself with Christians, there is not a real risk that he would come to the adverse attention of the Iranian authorities. Decision-makers must nevertheless consider the possible risks arising at the ‘pinch point’ of arrival:

i) All returning failed asylum seekers are subject to questioning on arrival, and this will include questions about why they claimed asylum;

ii) A returnee who divulges that he claimed to be a Christian is reasonably likely to be transferred for further questioning;

iii) The returnee can be expected to sign an undertaking renouncing his claimed Christianity. The questioning will therefore in general be short and will not entail a real risk of ill-treatment;

iv)  If there are any reasons why the detention becomes prolonged, the risk of ill-treatment will correspondingly rise. Factors that could result in prolonged detention must be determined on a case by case basis. They could include but are not limited to:

a) Previous adverse contact with the Iranian security services;

b)  Connection to persons of interest to the Iranian authorities;

c) Attendance at a church with perceived connection to Iranian house churches;

d) Overt social media content indicating that the individual concerned has actively promoted Christianity.

Read the full decision:

Continuing Conflicts That Create Refugees - March 2020

Burundi, Cameroon, Democratic Republic of Congo, Somalia, Mozambique, Guinea-Bissau, India (non-Kashmir, )Bosnia And Herzegovina, Ukraine, Turkey, Kazakhstan, El Salvador, Syria, Saudi Arabia, Yemen.

Conflict Risk Alerts: Somalia, Yemen. - Resolution Opportunities none

Crisis Group’s monthly conflict tracker highlights deteriorations in February in fifteen countries, including an escalation of fighting in Syria’s Idlib between Russian-backed regime forces on one side and rebels and Turkish forces on the other. In DR Congo’s east, a brutal militia expanded its reach leaving over 60 civilians dead in Ituri province alone, and deadly Hindu-Muslim violence erupted in India’s capital New Delhi. Looking ahead to March, we warn that violence could intensify further in Yemen’s north as the Huthi's seek to sustain their counteroffensive against government forces as well as cross-border attacks into Saudi Arabia. We fear that fighting could also escalate in Somalia between federal government troops and forces loyal to the leadership of Jubaland state.

Read more: International Crisis Group,

Serco lock-Change Evictions Glasgow - Further Three-Month Suspension

Asylum seekers affected by the Serco ‘lock-change’ evictions in Glasgow can remain in their homes for another three months after Govan Law Centre (GLC) secured a further suspension of appeal cases. The long-running legal battle began in July 2018 when asylum accommodation provider Serco announced that it would evict 300 people from their homes if they were no longer eligible for asylum support.

GLC is currently seeking permission to appeal to the UK Supreme Court in respect of the Inner House of the Court of Session’s decision in the case of Ali v Serco Ltd, Compass SNI Ltd and the Secretary of State for the Home Office. In light of this appeal, the Sheriff Principal has discharged hearings in four test cases assigned for 5 March 2020 and continued same to 26 March 2020 at 9.30am. As a result, the cases have also been deferred to a new court date for the outcome of GLC’s application to appeal to the Supreme Court.

Mike Dailly, solicitor advocate at Govan Law Centre, said this essentially means that people who have cases concerning Serco, can remain in their homes until a decision has been reached by the UK Supreme Court. Mr Dailly added: “The Sheriff Principal’s decision to pause the Serco appeal cases is welcome news for asylum seekers in Glasgow who are subject to eviction action by Serco from their homes. It will alleviate what is a very stressful time for our clients. “We remain convinced that asylum seekers should be afforded the same rights as everyone else. We will continue to work with our partners to try and overturn the decision of Serco and the Scottish courts.”

Scottish Legal News,

Immigration Statistics, Year Ending December 2019

Enforced Removals

In 2019, enforced returns from the UK fell to 7,361, 22% lower than the previous year and the lowest number since records began in 2004. The fall was largely accounted for by the fall in enforced returns of people who were in detention prior to their return (down 19% to 5,033). Over the same period, there were 11,421 voluntary departures. Although these data are not directly comparable over time (as voluntary returns are subject to upward revision, as in some cases it can take time to identify people who have left the UK without informing the Home Office) the numbers recorded have fallen since 2015. There were 17,815 passengers who were refused entry at port and subsequently departed, 8% lower than in 2018 and similar to levels seen in 2015 and 2016.

Immigration Detention
The number of people entering detention in 2019 was similar to the previous year at 24,443. Prior to this, there has been a downward trend since 2015. As at 31 December 2019, there were 1,637 people in immigration detention – 8% fewer than on 31 December 2018 and fewer than half the number as at 30 September 2017.The majority (84%) of those entering detention in 2019 were non-EU nationals. The number of non-EU nationals entering detention fell from a peak of 29,424 in the year ending September 2015 to 20,578 in the year ending December 2018 and has remained stable over the latest year (20,501). The number of EU nationals entering detention gradually increased between 2009 and 2017. However, numbers have since fallen to 3,942, falling 21% between 2017 and 2018 and a further 6% between 2018 and 2019. Albanians were the most common nationality entering detention in the latest year, accounting for 14% of the total (3,477) and a 29% increase on the previous year. The number of Iranian nationals entering detention more than doubled to 1,758, moving from the 11th to 2nd highest nationality entering immigration detention. These changes have occurred at a time when the UK has also seen increasing numbers of asylum applications from these nationalities.
As at 31 December 2019, there were 1,637 people in immigration detention, 8% fewer than on 31 December 2018, and fewer than half the number as at 30 September 2017.

Asylum, Humanitarian Protection

The UK offered protection – in the form of asylum, humanitarian protection, alternative forms of leave and resettlement – to 20,703 people in 2019, up 30% compared with the previous year and similar to levels seen in 2003. The Vulnerable Person Resettlement Scheme (VPRS) accounted for over three-quarters (4,408) of those resettled in the UK in 2019. Since it began in 2014, 19,353 people (mainly Syrian nationals) have been resettled under the scheme. There were 35,566 asylum applications in the UK (main applicants only) in 2019, 21% more than the previous year, but lower than the peak in year ending June 2016. In 2019, 52% of initial decisions on asylum applications were grants of asylum, humanitarian protection or alternative forms of leave (such as discretionary leave or unaccompanied asylum-seeking children (UASC)), compared with 33% in the previous year.

Support Provided to Asylum Seekers
At the end of December 2019, 43,549 asylum seekers in the UK were in receipt of support under Section 95 of the Immigration and Asylum Act 1999, down 2% from the same time the previous year. Of these, 40,702 (93%) were in receipt of both accommodation and subsistence, and 2,847 (7%) in receipt of subsistence only. The majority (83%) were located in England, with smaller supported populations in Scotland (9%), Wales (6%) and Northern Ireland (2%). An additional 3,804 individuals were in receipt of support under Section 4 of the Immigration and Asylum Act 1999 (down 6% from the previous year) and 2,738 individuals were in receipt of support under Section 98 (29% more than the year before). Section 98 support is provided to asylum seekers on a short-term basis while their application for section 95 support is considered. In 2019, there were 20,009 applications for Section 95 support, an increase of 15% compared to the previous year. This increase comes at a time when asylum applications have increased, by 21%, over the same period.

Visas Granted For Family Reasons
There were 190,973 visas granted for family reasons in 2019, 27% more than in 2018. There were increases in family-related visas granted (up 30% to 56,647), dependants of people coming to the UK on other types of visas (up 15% to 81,525) and EEA family permits (up 27% to 46,111). There were also 6,690 EU Settlement Scheme (EUSS) family permits granted since the scheme was launched on 30 March 2019.

There were 174,438 applications for British citizenship in 2019, 6% more than the previous year. In the last 12 months, applications for citizenship by EU nationals have remained fairly stable at 49,480, following increases after 2016. Applications made by non-EU nationals increased by 8% in the most recent year to 124,958. There were 94,762 decisions on applications for settlement in the UK from non-EEA nationals in 2019, similar to the previous year. Of these, 91,307 (96%) resulted in a grant.

Extension of Temporary Stay in the UK
There were 293,812 grants of extensions of stay in the UK in 2019, 18% more than in the previous year. Family was the most common route in which people extended, with 115,180 family-related grants of extensions in 2019, followed by 110,155 extensions in the work category.

Work-Related Visas
There were 193,517 work-related visas granted in 2019 (including dependants), 10% higher than 2018, and the highest level since 2007, before the ‘points-based system’ (PBS) was introduced.

Most of the rise was accounted for through increases in grants of Skilled (Tier 2) work visas, which increased by 11% to 113,958, the highest level on record. The Tier 2 category accounts for 59% of work-related visas granted. However, there were also increases in the number of grants in all other work categories.

How Many People Arrived in the UK
There were an estimated 146.3 million passenger arrivals in 2019 (including returning UK residents), a 2% increase compared with the previous year and the highest number on record. There were 3.2 million visas granted in 2019, a 10% increase compared with the previous year, continuing the upward trend seen over the last decade. Of these, over three-quarters (76%) were to visit, 9% were to study (excluding Short-term study), 6% were to work and 2% were for family reasons.

Immigration Statistics, Year Ending December 2019: