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, https://is.gd/fFzb61
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, https://is.gd/7gytH9
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.
Freemovement, https://is.gd/OZDtHZ
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: https://www.bailii.org/uk/cases/UKUT/IAC/2020/46.html
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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, https://is.gd/JVNDCr
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, https://is.gd/5gcWXd
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.
Citizenship
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: https://is.gd/ylGuHe
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