News & Views Monday 11th May to Sunday 17th May 2020

French People Helping Undocumented Migrants Cannot be Prosecuted for “Crimes of Solidarity”

A French court has scrapped all charges against an olive farmer who helped migrants enter the country illegally, the final chapter in a groundbreaking case that defined so-called “crimes of solidarity”. Cédric Herrou, who helped about 200 people cross the border from Italy into southern France, was given a four-month suspended sentence in August 2017. He had brought the destitute migrants home and set up a camp for them. He was also convicted of sheltering about 50 Eritreans in a disused railway building.

France’s constitutional council later said Herrou’s actions were not a crime under the “principle of fraternity” as enshrined in France’s motto: Liberté, égalité, fraternité. The council, which evaluates the validity of French laws, ruled that people cannot be prosecuted for “crimes of solidarity”. In December 2018, the Cour de Cassation – France’s court of final appeal – overturned Herrou’s conviction and sent the case back to the appeals court in the city of Lyon, which on Wednesday ruled all the charges were void.

“Reason and the law has triumphed,” said Sabrina Goldman, a lawyer on the case. “Why focus on someone who did nothing but help? How can what he did be regarded as anything other than a humanitarian act?” Amnesty International said the ruling would have implications throughout Europe for the criminalisation of “acts of solidarity”. “Cédric Herrou did nothing wrong, he simply showed compassion towards people abandoned in dire conditions by European states,” said Amnesty’s Rym Khadhraoui. “Whilst it is a relief that Cédric Herrou’s ordeal is now over, he should never have been charged in the first place.” French law should now be amended to ensure only people smuggling, which entails a material benefit, is an offence, and not humanitarian assistance, Khadhraoui said.

Source: Guardian,

New Dublin III Policy Brings Significant Changes For Family Reunification

On 30 April 2020 the Home Office published an updated policy on the Dublin III Regulation which has some significant changes for family reunification cases. The new policy includes updates on Article 9, Article 13.2 (entry and/or stay), Article 17.2 (discretionary clauses), working with local authorities in response to a take charge request involving unaccompanied minors, and on timescales.  The most significant change in the policy relates to what happens after a take charge request is refused and the requesting state makes a request for re-examination.

Article 5.2 of the implementing regulations provides that the member state that receives a request for re-consideration shall “endeavour to reply within two weeks”. But, unlike the timescale for reply to an initial take charge request, this is not mandatory and there are no consequences for failing to meet the deadline. Until recently, the Home Office was reviewing re-examination requests as they were made. If the evidence clearly showed a family link between the sponsor and the applicant, the Home Office accepted responsibility for the applicant’s asylum claim, even if was months after the reconsideration request was made.

Read more: Freemovement,

Home Office: ‘No Recourse to Public Funds’ Policy Violation of Article 3

An 8-year-old British boy – supported by his migrant mother – has won a ruling that the policy denying families like his access to the welfare safety net is unlawful. The judges in the case heard that the boy, whose identity is protected by an anonymity order and is therefore known only as W, has had to endure extreme poverty for most of his life. Under the ‘no recourse to public funds’ (NRPF) policy introduced in 2012 by then Home Secretary Theresa May, W’s mother is blocked from receiving the same state support that helps other low-earning parents to survive, including child and housing benefits, or tax credits. The court heard that the 8-year-old had been forced to move school five times and been street homeless with his mother, due to the Home Office’s refusal to allow them access to the social security safety net. The judges were also told that J, as his mother was known in court, had been driven into debt and suffered from serious anxiety.

The judges ruled that the NRPF policy breaches Article 3 of the ECHR, which prohibits inhuman and degrading treatment. A detailed judgment and order will follow, which will set out the steps the Home Office needs to take to comply with the judges’ ruling. The High Court challenge was supported by The Unity Project, a charity set up three years ago to support families facing destitution as a result of NRPF.  A detailed judgment and order would follow, setting out the steps the Home Office needed to take to comply with the ruling.

Project co-ordinator Caz Hattam says: ‘Even before the pandemic, this policy was trapping working families in the most abject poverty, forcing them into debt, and unsafe, insecure housing. Since the Covid-19 outbreak, their situations have become even more dire and desperate. We provided a wealth of evidence of how children’s lives are being blighted by this policy, and we welcome the judges’ recognition that their families must be given access to the welfare safety net to prevent them falling into destitution.’

Adam Hundt, partner at Deighton Pierce Glynn, the law firm bringing the case, says: “We and many others have been telling the Home Office for years that this policy is causing immeasurable, irreversible damage to so many people, but particularly children like our client. The Home Office refused to listen and ignored all the evidence they were shown, so it has now been left to the courts to confront the truth, which is that the policy breaches human rights law.”

Deighton Pierce Glyn Solicitors,

Continuing Conflicts That Create Refugees - May 2020

Deteriorated Situations: Central African Republic, Democratic Republic of Congo, South Sudan, Lesotho, India (non-Kashmir), Kashmir, Sri Lanka, Myanmar, South China Sea, El Salvador, Yemen, Libya.

Conflict Risk Alerts: Burundi, Sri Lanka, Yemen, Libya.

Improved Situations: None - Resolution Opportunities: None

It’s month two of the COVID-19 outbreak, and we still face more questions than answers. Uncertainties surround in particular the issue of why some countries have experienced the virus far more severely than others. Of notable interest to Crisis Group, many conflict-afflicted areas, whose populations are especially vulnerable, so far appear to have been spared the brunt of the disease. A good rundown by The New York Times sheds some light, though light that ultimately illuminates a frustrating cascade of riddles: explanations related to age might account for high incidence rates in Italy, whose population trends toward the elderly, but not for high rates in Ecuador, whose citizens tend to be young, or low ones in Japan; some countries with warmer, more humid climates have fared well, others like Brazil less so; one can point to early lockdown measures in South Africa as reason for relative success, but then again Cambodia and Laos did not follow that route and yet do not seem to have suffered disproportionately. Insufficient testing plus delays in the spread of the virus may be a crucial factor in explaining these seeming contradictions, and it remains possible that those who avoided the worst today may suffer it tomorrow. But that too is speculation.

Read more: Crisis Watch,

You Can Carry on With an Old-Style EU Law Appeal Even if Granted Settled Status

The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals – abandonment) [2020] UKUT 124 (IAC) following on the heels of MSU and Aziz. This time the facts concern an appeal against a refusal by the Home Office to issue a permanent residence card, based on a retained right of residence, and brought under the EEA Regulations (in this case the Immigration (European Economic Area) Regulations 2016).  After lodging the appeal the appellant, Mr Ammari applied for and was granted “settled status” under the EU Settlement Scheme, a form of indefinite leave to remain (ILR). Meantime the First-tier Tribunal, unaware of the grant of ILR, had considered and refused Mr Ammari’s appeal against the refusal to grant a residence card. Mr Ammari was granted permission to appeal to the Upper Tribunal, where the abandonment issue reared its head. At the Upper Tribunal the Home Office conceded that the First-tier judge had erred in refusing the appeal, but that this was immaterial since the grant of ILR served to abandon the appeal. Not so, said the Upper Tribunal, based on two key aspects.

Read more: Freemovement,

No Need to be A “Qualified Person” to Use the Surinder Singh Route

Tribunals that decide whether someone is entitled to benefits often have to grapple with our nightmarish immigration law. HK v SSWP (PC) [2020] UKUT 73 (AAC) is one such case from the Administrative Appeals Chambers. It effectively confirms that a British citizen who returns to the UK with family members under the Surinder Singh route is not required to be a “qualified person” to allow their family a right to reside. To recap very briefly: the EU law Surinder Singh route basically gave family members of British citizens a chance to bypass domestic law, with its minimum income requirements, English tests and other onerous criteria. If the British citizen could show that they had exercised their free movement rights in another EU country (for example by working or being self-employed for a period), their family members could re-enter the UK with them under EU law.
The government has always had a bee in its bonnet about Surinder Singh cases. As time went on, the Home Office made it more and more difficult for people to use the Surinder Singh route by introducing requirements which were clearly unlawful. For example, you had to show you transferred your “centre of life” to the EU country you moved to, and the British citizen had to show they were a “qualified person” for the purposes of EU free movement law after coming back to the UK.  In September 2019, nearly six years after the centre of life test came into force, the Upper Tribunal found the test to be incompatible with EU law. The HK case picks apart another of these unlawful requirements, the supposed need for the British citizen to show they were a qualified person on their return.

Read more: Freemovement,

High Court Orders SSHD to Give Asylum Seeker Accommodation and Support to Self-Isolate During  Corona Pandemic

In this case unusually, the High Court has issued a judgment following an application for an interim order. The matter concerns the accommodation of asylum-seekers who display Covid-19 symptoms, who bears the responsibility for accommodating asylum-seekers who are symptomatic, and the communication of policy and practice in this area.

The background to the case is that AQS is an asylum-seeker in his early twenties who has yet to receive a decision on his claim. On making his asylum claim he applied for asylum support as he had no income, savings or housing and was found to be eligible for support under s95 Immigration and Asylum Act 1999. He was placed in accommodation in Harrow, Middlesex. He reports symptoms of mental illness as a result of his experiences in his home country but has yet to access treatment.

While in asylum accommodation, he was attacked by a fellow resident and suffered injuries to his face and body. The police arrested the other party but he was later released. AQS was fearful of staying in the accommodation and requested a transfer. Migrant Help, who have the contract to provide asylum support initially refused to rehouse AQS but following an application for judicial review, provided AQS with alternative accommodation.

It is within this context that the current litigation arises. AQS was fearful of sharing accommodation but was required to share a room with another individual who started to display symptoms of Covid-19. AQS raised concerns with the accommodation provider who moved the other person elsewhere but within a day or so, AQS himself also became unwell with symptoms of Covid-19. He expressed his distress that he had been exposed again to harm to the accommodation provider, the argument escalated and property was damaged. The police were called and evicted AQS from the property. Both the police and the accommodation provider were aware that AQS was conspicuously unwell. He had not been served with any official eviction notice.

Read more:  Duncan Lewis,

Home Office Accused of Pressuring Judiciary Over Immigration Decisions

The Home Office has been accused of interfering with the independence of the judiciary after it emerged that judges were asked to provide written explanations for a rise in the number of detainees released from immigration centres during the Covid-19 pandemic. In a letter to the president of the Tribunal, Immigration and Asylum Chamber dated 29 April 2020, the Home Office’s head of appeals, James Stevens, wrote: “The numbers of those in detention have reduced very significantly since the start of this emergency.” He went on to say: “The Home Office is somewhat surprised at the level of grants of bail in recent weeks.” Official figures record 1,225 people in detention centres on 1 January and 368 at the latest count – a reduction of almost three-quarters.

Stevens outlined the ways in which the Home Office had responded to the risks coronavirus posed to detainees, before adding: “Where bail is granted I would ask you to consider whether immigration judges could provide written reasons for this.” Judges are not required by law to do this. Stevens wrote: “While I realise this is not a requirement under the procedure rules, it would assist the Home Office to fully understand the reasons why bail has been granted.”

In a response dated 1 May, Michael Clements, the chamber’s president, issued a robust rejection of the Home Office’s request. “As independent judiciary we decide bail applications in accordance with the law, which includes the guidance which has been issued. There has been no change in either the law or the guidance,” he wrote. “The primary function of detention is accordingly to facilitate removal, and unless there are very powerful reasons to the contrary bail should be granted if there is no removal of the bail applicant within the reasonably foreseeable future.”

Read more: Diane Taylor, Guardian,

Vietnam: Returned Victims Of Trafficking: Issues Affecting Likelihood of Re-Trafficking

The critical need to prioritise country of origin information production on children and young people’s risk profiles has become increasingly apparent as lawyers are consistently raising concerns to us about the scarcity of available information in relation to child-specific persecution and harm acting as a barrier to proper consideration of young people’s protection claims.

This is especially relevant in the UK as Vietnamese nationals regularly form one of the top ten largest groups of asylum seekers in the UK. They also consistently feature in the top three nationalities of victims referred to the UK National Referral Mechanism (NRM), with numbers consistently increasing over the past few years. Existing COI focuses mainly on the migration route and experience en route or in the country of final destination rather than on the situation upon return for victims of trafficking.

Our report combines relevant and timely publicly available material with new information generated by interviewing six individuals with authoritative knowledge on the topic. We hope that the report will help fill the gap in the COI literature and thus contribute to a more transparent and informed debate about the topic. You can access the report here and the associated press release here.

Read more:  Asylum Research Centre (ARC),

Sudita Keita v. Hungary -  Difficulties Regularising Leave to Remain Violation of Article 8

The applicant, Michael Sudita Keita, is a stateless person (of Somali and Nigerian descent) who was born in 1985 and lives in Budapest.
The case concerned the difficulties in regularising his legal situation in Hungary over a period of 15 years.

Mr Sudita Keita arrived in Hungary in 2002, submitting a request for recognition as a refugee. The immigration authorities rejected it the same year.

He has continued to live in the country without any legal status, apart from one period from 2006 to 2008 when he was granted a humanitarian residence permit as an exile because he could not be returned to Somalia while the civil war was ongoing and the Nigerian embassy in Budapest had refused to recognise him as one of its citizens.

The authorities reviewed his exile status in 2008 and ordered his deportation in 2009, but it was not enforced.

Ultimately, in 2017, the Hungarian courts recognised him as a stateless person. His request had at first been refused because he did not meet the requirement under the relevant domestic law of "lawful stay in the country". That requirement was, however, found unconstitutional in 2015.

He submits that he has been living with his Hungarian girlfriend since 2009 and completed a heavy¬machinery operator training course in 2010.

Relying in particular on Article 8 (right to respect for private and family life) of the European Convention on Human Rights, Mr Sudita Keita complained about the authorities' protracted reluctance to regularise his situation, alleging that it had had adverse repercussions on his access to healthcare and employment and his right to marry.

Violation of Article 8

Just satisfaction: 8,000 euros (EUR) for non-pecuniary damage and EUR 4,000 for costs and expenses