News & Views Monday 16th March to Sunday 22nd March 2020

Asylum Seekers Endangered By Coronavirus Lockdown

Asylum seekers are still being required to go to Liverpool to hand in documents despite official guidelines advising people to avoid travel during the coronavirus outbreak. Currently, anyone seeking asylum in the UK is required to lodge their submissions at the Liverpool Home Office – a process that can take as little as five minutes. Campaigners are now demanding these requirements are lifted while the outbreak is ongoing, warning that lives are being risked every day the current arrangement remains in place. Positive Action in Housing, the refugee and migrant homelessness charity, warned that failing to take immediate action to protect asylum seekers was “a public health disaster waiting to happen”.

Robina Quereshi, the charity’s director, said: “"One of our service users, Nadiyah, 48, is travelling to Liverpool by train today to lodge her new asylum application at the Liverpool Home Office. She has serious health problems and is a high-risk category. “This is the third time she has made this journey. Her lawyer phoned the Home Office in Liverpool and suggested that, at least while the coronavirus epidemic was in progress, clients should be allowed to post their documents. The Home Office categorically refused to consider this. "It is utter madness in the current situation to make people travel via public transport at this time. All that is involved is that an envelope of evidence is handed in. This takes a maximum of five minutes.”

Read More: Scotlands Third Voice,

Failed Asylum Seeker's Daughter 'at High Risk of FGM

A has lived in the UK from the age of three. If she is removed to Bahrain or Sudan, she will be isolated and unsupported. She is unable to speak Arabic fluently, limiting her ability to communicate freely with her mother and seek help independently. Additionally, A has no recollection of living in Bahrain and has very limited knowledge of her African heritage as she has been raised with British culture and norms.

A is unaware of the practice of Female Genital Mutilation (FGM) or that she is at risk of this procedure. The father has played no role in the family for several years. He is currently believed to be in military prison in Bahrain and is stated to support the practice of FGM. The mother reported that it was the father’s intention to take A to Sudan to undergo the procedure and that he last mentioned this to her in 2015. As such the father cannot be considered a protective factor against the risk of FGM.

The mother, suffers from disabling PTSD and is very fearful of returning to Bahrain or Sudan. She does not have the resolve to protect A from family pressure surrounding FGM. The negative impact on our client’s mental health if the family were to be removed would render her less able to provide protection for A, particularly in the context of family and cultural expectations as well as the patriarchal hierarchy in Bahrain and Sudan.

Read more: Gherson Immigration,

Returning Residents: Have you lost your Indefinite Leave to Remain/Enter, and can you get it back?

Indefinite Leave to Remain (“ILR”) and Indefinite Leave to Enter (“ILE”) carry the same rights, i.e. those granted ILR or ILE have no time restrictions on their stay in the UK.  There is no time limit on the validity of ILR/ILE status, although it is important to understand that this status can be lost under certain conditions.

How is ILR/ILE lost? In order to maintain your ILR/ILE status you must continue to reside in the UK. If you hold ILR/ILE but move away and spend a continuous period of two or more years outside of the UK, your status will lapse and cease to be valid. This is the case even if you still hold your ILR/ILE Biometric Residence Permit (“BRP”) or passport vignette – your status can cease to exist regardless of your possession of such a document.

Absences of less than two years will not result in the loss of ILR/ILE, provided that the holder returns to the UK within the two-year period, and enters the country for the purpose of settlement. Factors such as how many days you are spending in the UK, what ties and connections you have to the UK (family, property, business) and whether you are spending the majority of your time in another country will all matter and can affect a UK Border Officer’s decision on whether your status should remain intact upon reentry. 

Additionally, ILR/ILE can be revoked in less common circumstances such as if the status was obtained by deception, or if the holder is being deported.

How can ILR/ILE be regained?

As above, those who have been granted ILR/ILE and have subsequently been absent from the UK for two consecutive years or longer will be deemed to no longer hold ILR/ILE.

Upon their desired return to the UK, they are known as ‘returning residents’ and must make an entry clearance application evidencing strong ties to the UK, and the intention to make the UK their permanent home once more. Evidencing this will depend on a range of factors, which must be considered carefully in each individual case.

Read more: Gherson Immigration,

Extra-Statutory Immigration Policies Should Be Interpreted

(1)   Extra-statutory immigration policies should be interpreted in accordance with the objective meaning that a reasonable and literate person would ascribe to them.

(2)   The Home Office discretionary leave policy should not be read as saying that, once it is decided that an individual continues to qualify for further leave on the same basis as before, he must automatically be granted indefinite leave to remain after 6 years' continuous discretionary leave unless at the date of decision he falls within the restricted leave policy. The word ‘normally' is used advisedly, so as to maintain the maximum possible discretion. Where a policy governs what is to happen in the normal case, it remains open to the decision-maker to take a different course in a particular case, provided he or she takes account of the policy and has reason for considering the case to be abnormal.

(3)   There are four categories of cases in which supplementary reasons, supplied in response to an actual or threatened legal challenge, may be relied upon: first, to ‘elucidate' reasons previously given; secondly, to constitute a ‘fresh decision'; thirdly, to consider material not before the decision-maker at the time when the earlier decision was taken; and fourthly, to acknowledge that the original decision was flawed but simultaneously make a new one to the same effect.

(4)   Even if the original decision is held to be unlawful, relief must be withheld pursuant to s.31(2A) of the Senior Courts Act 1981 if a further decision shows that it is highly likely that the outcome would not have been substantially different, unless the proviso in s.31(2B) applies.

Frontex 330 Charter Flights  January Through December 2019

330 flights - total number of returnees 10,903,

Countries of destination were: Afghanistan, Albania, Angola, Armenia, Azerbaijan, Bangladesh, Benin, Bosnia & Herzegovina, Cameroon, Colombia, Congo DR, Côte d'Ivoire, Dominican Republic, Ecuador, Egypt, Ethiopia, Georgia, Ghana, Guinea, Iraq, Kenya, Kosovo*, Lebanon, Mauritania, Moldova, Mongolia, Montenegro, Nigeria, North Macedonia, Pakistan, Russia, Senegal, Serbia, Somalia, Sudan, The Gambia, Tunisia, Turkey, Ukraine, Uzbekistan.

European Border and Coast Guard Agency, also known as Frontex, is an agency of the European Union headquartered in Warsaw, Poland, tasked with border control of the European Schengen Area, in coordination with the border and coast guards of Schengen Area member states.

No-One Can ‘Self Isolate’ From a Friend’s Sofa, a Park Bench or a Shop Doorway"

RAPAR is calling upon the State to suspend all detention and deportation activities, including legal processes.  We also call upon the State to extend an invitation to all undocumented, displaced and destitute people, i.e. those most acutely vulnerable to COVID-19, to come forward for safe housing , without fear of being snatched or locked up, and so that they may contribute, openly, to making the population as safe as possible.
Obviously, no one will be able to act in their own - and everyone else’s - best interests if their basic needs are unmet.  RAPAR Chair of Trustees, Dr Rhetta Moran says: “We are acutely aware of the risk COVID-19 poses both to our Members and to the wider population.  This is why we are reaching out in this way, right now.  Our 2010 position that questioned that Government’s ‘Big Society’ a decade ago is being borne out.  There is, hopefully, still time to act with compassion and wisdom. At last night’s televised press conference, the Government insisted that social contact be minimised immediately and, at the same time, insisted that our schools remain open.  This is not rational.  It is physical contact that needs to be minimised, not social, educational, legal or political communication.  It is within our capacities to offer these resources to one another while minimising physical contact - let’s do the possible.”

Suspend all detention and deportation processes

Invite all undocumented or displaced or destitute people to come forward, without fear

Identify empty buildings with capacity for creating self-contained units where homeless people can live, with local community support, now


Supreme Court Rules to Remove MS to Pakistan Would  Breach  Article 4

The appellant is a Pakistan national born in June 1995. He entered the United Kingdom on a visit visa in July 2011 when he was just 16. His case is that he was tricked into travelling to the UK by a promise that he would be furthering his education but that he was delivered to a restaurant owner and made to work long hours unpaid. He was able to leave this job for a succession of very low paid jobs in Asian food outlets which he was directed to by adult co-workers. He was arrested by the police in September 2012 and claimed asylum. His social worker referred him to the Competent Authority as a potential victim of trafficking, but the authority held in February 2013 that he had not been brought to the UK for the purpose of forced service. The respondent rejected his claim for asylum and issued removal directions. The Upper Tribunal held that the appellant could challenge the negative trafficking decision in the appeal, had not been granted his rights under ECAT, and that his removal would be in breach of article 4 ECHR.  The Court of Appeal allowed the respondent’s appeal, holding that the Upper Tribunal had exceeded its jurisdiction in remaking the trafficking decision and then erred in using its remade decision for the wrong purpose. MS withdrew his appeal but the Equality and Human Rights Commission applies to be substituted for the appellant.

The issue: 1. Where the Competent Authority for the purposes of the European Convention on Action against Trafficking in Human Beings (ECAT) has determined that a person is not a victim of trafficking, what effect does this have on the jurisdiction of a tribunal hearing an appeal against a decision to remove that person to decide whether a person is a victim of trafficking?

2. Where a tribunal decides that a person is the victim of trafficking, what impact does this have on the lawfulness of the decision to remove the person by reference to article 4 of the European Convention on Human Rights (ECHR) and applicable policy?

The Supreme Court unanimously allowed the appeal. In the present case, the UT decided that the Appellant was indeed a victim of trafficking. Once brought to the attention of police, the Appellant was removed from the risk of further exploitation, while the UT held that he would not be at risk of re-trafficking if returned to Pakistan. However, there had not yet been an effective investigation into the breach of article 4, as the police took no action after referring him to social services. Such an investigation is required and cannot take place if the Appellant is removed to Pakistan. The appeal is therefore allowed and the UT’s decision on this ground restored

Read more:

Immigration Health Surcharge to Increase

Rishi Sunak, The Chancellor of the Exchequer, delivered the 2020 Budget, outlining some significant reforms to support public services, businesses and individuals in the UK. The Budget is a financial statement set by HM Treasury each year outlining the nation’s finances and the Government’s proposed changes to taxation, revenue and expenditure.  This year’s Budget is set against the global outbreak of COVID-19 (Corona Virus) and the UK Government’s pledge to protect health and security despite the increasing economic disruption the virus is causing.
The statement released confirms an increase in the Immigration Health Surcharge (“IHS”) from the current level of £400 per year to £624 per year. This change will be implemented in October 2020 and will apply to all non-EEA nationals and their relevant family members who make immigration applications to come and live in the UK. As before, the mandatory IHS fee will only apply to those migrants who will remain in the UK for more than 6 months or to those who are extending their leave.  The changes also include an increase in the normally discounted IHS fee for students and Youth Mobility Scheme migrants from £300 to £470 per year.

Unlike the current scheme, children under the age of 18 will not be required to pay the full IHS fee. The surcharge will be capped at £470 per year for all child migrants in recognition of the financial impact that the fee increase will have on family groups. From January 2021, the surcharge will also be applicable, under the same conditions, to all EEA migrants arriving in the UK under the proposed new immigration system.  The Office for Budget Responsibility (OBR) forecasts the increase in the IHS surcharge will generate additional revenue of approximately £150 million in the 2020-21 financial year. 

Source: Gherson Immigration,

“Genuine chance of being engaged” test for retaining EU worker status found unlawful

EU citizens do not have to prove that they have a “genuine chance of being engaged” in order to retain worker status under European Union law, the Upper Tribunal has held. The case is KH v Bury MBC and SSWP [2020] UKUT 50 (AAC).

Martin Williams of the Child Poverty Action Group brought the case on behalf of KH, a Polish citizen. KH needed to prove that she retained the status of worker after being unemployed for over six months, in order to keep her housing benefit. Standing in her way were the EEA Regulations, which provide (in both the 2006 and 2016 versions) that someone in this position must “provide evidence that [s]he is seeking employment and has a genuine chance of being engaged”.

KH argued that this test was unlawful. All the Citizens’ Rights Directive requires of people to keep their worker status is “being in duly recorded involuntary employment and registration as a jobseeker at the relevant employment office”. The UK adding on a genuine chance of being engaged test undermined the directive.

Upper Tribunal Judge Wright agreed:

As a matter of EU law, when it is properly understood, having a genuine chance of being engaged in employment is no part of the test for retained worker status…

It follows, according to paragraph 26 of the judgment, that regulations 6(2)(b)(ii) and 6(2)(c)(ii) of the EEA Regulations 2016, and their equivalents in the 2006 Regulations, are “unlawful and of no legal effect”.