Leave
to Remain Does Not Automatically Mean ‘No
Public Funds’
Under normal circumstances, the
so-called ‘no recourse to public funds regime’
(“NRPF regime”) represents one of the default
conditions for a grant of leave to remain in the
UK (“LTR”). The High Court has recently ruled,
however, that in certain circumstances, where
the consequences of such a regime result in the
applicant suffering inhumane or degrading
treatment, the application of this condition by
the Home Office may be unlawful. The Claimant in
the case that came before the High Court was a
British citizen child, whose mother had LTR on
the 10-year route to settlement and was subject
to the NRPF regime. The mother had been employed
as a carer for disabled people and earned a
relatively low salary. The imposition of the
NRPF condition therefore led her and her child
to endure periods of destitution and resulted in
the family being homeless for some time. They
were rehomed by a local authority, but were
required to relocate frequently, which severely
disrupted the child’s education.
Prior to her most recent application, the
Claimant’s mother provided evidence to show that
she would be left destitute if the NRPF
condition was imposed on her. Nevertheless, the
Home Office disregarded her plea and the
condition was enforced. A claim was therefore
prepared arguing that the NRPF condition was
unlawful. As a result of the pre-action
correspondence, the condition was lifted by the
Home Office before the case was able to come
before the Court. However, this measure had no
retrospective effect and did not allow the
Claimant’s mother to take advantage of access to
housing benefit and tax credits for the whole
period of time during which the family had been
subject to destitution. A judicial review
application was subsequently filed to challenge
the Home Office’s decision to impose the NRPF
condition, and to seek wider accountability for
the repercussions of the legal basis under which
the NRPF condition is enforced.
Posted by: Gherson Immigration, https://is.gd/sLxaaE
Refugee
Convention: Who Are Refugees and Asylum
Seekers?
This piece is about refugees, asylum
seekers, and the Refugee Convention. It outlines
who can be a refugee, and how being a refugee
and having “refugee status” are two very
different things. We also explore the rights and
entitlements available to refugees and to asylum
seekers awaiting the outcome of their claim, and
how these have changed over time. Finally, the
piece considers how people can be excluded from
benefitting from refugee rights under the
Convention.
Refugees and the Refugee Convention - The
relocation of refugees and asylum seekers dates
back to the ancient customary “right of asylum”,
under which the international community would
provide protection to those forced to flee their
home countries. In the 20th century these rights
were formalised under international law into
duties owed by states to those fleeing
persecution and serious harm. The most important
of these pieces of international law is the
Refugee Convention 1951 and its 1967 Protocol.
The Refugee Convention is not UK immigration
legislation. It is a piece of international
human rights law, designed to remedy the
problems that arise when people or groups of
people can no longer rely on their state to
protect their most fundamental rights. In this
way it is unusual amongst other human rights law
(such as the European Convention on Human Rights
or ECHR) because of its palliative focus – that
is, it deals with the symptoms of
state-sponsored human rights abuse, and not its
causes.
Read more: Freemovement,
https://is.gd/rRl8mq
Revealed:
Unpublished Guidance On Detaining Vulnerable
Migrants
Lawyers have uncovered internal Home
Office guidance on detaining vulnerable
migrants. Duncan Lewis Solicitors and Garden
Court Chambers secured the previously
unpublished documents, which discuss how the
Adults at Risk policy should be interpreted and
applied, via a hard-fought Freedom of
Information request. The gist of the guidance is
that caseworkers should not second guess
medico-legal reports unless there are “clear
mistakes or errors”, nor “specifically challenge
the doctors’ clinical opinion”. The lawyers say
that their request for the information was
prompted by concerns that, in practice, the Home
Office was routinely failing to treat MLR
reports as amounting to Level 3 evidence despite
express findings by psychiatrists that detention
was causing, or was likely to cause, harm to the
individual’s mental health. A note by Duncan
Lewis and Garden Court summarising the internal
guidance and how it might be help with detention
challenges is available here (pdf).
Practitioners can also download the full Freedom
of Information response, which includes emails
from the Adults at Risk Returns Assurance Team,
here (pdf). Contact Lewis Kett or Grace Capel
with follow-up questions.
Read more: Freemovement, https://is.gd/AlLDnD
Serco Wins
Covid-19 Test-And-Trace Contract Despite £1m
Fine
Calls for government to cancel £45m
deal with outsourcing company over track record
of poor performance. Serco, one of the companies
that has secured a lucrative government contract
for the Covid contact-tracing programme, was
fined more than £1m for failures on another
government contract just months ago, the
Observer has learned. The revelation has led to
campaigners against the privatisation of public
services to call for the £45.8m test-and-trace
contract to be cancelled. Serco has a range of
government contracts both in the UK and
overseas, much of it focused on criminal justice
and immigration. It has already had to apologise
after breaching data protection rules on its
test-and-trace contract by inadvertently
revealing the email addresses of new recruits.
The junior health minister, Edward Argar, is a
former Serco lobbyist.
Serco, whose chief executive is Rupert Soames,
grandson of Sir Winston Churchill, is one of a
number of companies that has contracts with the
Home Office to provide accommodation for asylum
seekers. As a result of failures in this
contract in 2019, Serco was fined more than £1m
by the government, but no breakdown of the
failures has been disclosed in a freedom of
information response obtained by the Scottish
Refugee Council after a six-month battle. This
latest fine does not appear to have hampered
Serco’s ability to win a raft of government
contracts in recent months. According to the
company’s website, alongside the test-and-trace
contract, it secured an £800m 10-year prisoner
escort-and-custody contract in October 2019, and
in February this year a new contract, valued at
£200m, to manage two immigration removal centres
close to Gatwick airport . Serco has received
larger fines in the past, notably more than £19m
as part of a settlement with the Serious Fraud
Office over failures in electronic tagging
dating back to 2010.
Read more: Diane Taylor, Guardian, https://is.gd/W8WpSu
166 MP's From
All Parties Call For UK to Stop Teargas and
Rubber Bullet Exports to US
Pressure is growing on ministers to suspend the
export of British riot gear, teargas, and rubber
bullets to the US in light of a violent police
crackdown against peaceful civil rights
protesters in the country. More than 160 MPs
from every major party in the Commons, including
Boris Johnson’s own, have written to Liz Truss,
the international trade secretary, calling for
an immediate end to exports while an
investigation takes place. Meanwhile nearly half
a million people have signed a petition on the
issue in just a few days backing the call to end
sales. The 166 MPs from the Labour party, the
Conservatives, SNP, Liberal Democrats, Greens,
Plaid Cymru, Sinn Fein, Alliance, and SDLP say
there is a “need to act fast” and that the
government “is bound by law to freeze export of
all policing and security equipment to the US
where it could be misused”. “To witness not only
the murder but what can easily be described as a
lynching of a black man at the hands of a police
officer is an incident that has shocked the
world,” the letter, organised by Labour MP Dawn
Butler says.
Read more: Jon Stone Independent, https://is.gd/hOLMJl
Petition Suspend UK Export Of Tear Gas, Rubber
Bullets And Riot Shields to USA
527,871 have signed. Let’s get to 1,000,000!
You can sign the petition here: https://is.gd/9VbFbM
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Immigration
Appeals Much More Likely to Succeed if
There’s an Oral Hearing
A person whose immigration application to the
Home Office has been refused sometimes has a
right of appeal. Prior to the Covid-19 pandemic,
people essentially had a choice. Their appeal
could be heard in person, at court, in front of
a judge who would listen to their evidence live
(referred to as an “oral hearing”). Or they
could opt for a judge to decide the outcome
without a hearing, by only reading the documents
in the case to reach a conclusion (a “paper
disposal”). The immigration tribunals want
to decide a substantial number of appeals on the
papers during the pandemic, as set out in a
recent Pilot Practice Direction. Many
practitioners fear this may be indicative of a
change of approach even after the lockdown has
ended.
Whilst some may be suitable for paper disposal,
in immigration cases the truthfulness of
witnesses is often the central factor in
dispute. It has been of concern that even in
such cases, judges are canvassing whether
representatives will give consent for matters to
go ahead by paper consideration alone. Other
areas of law are similarly grappling with issues
of fairness in cases affected by the pandemic
(in the family context, for example, see Re A
(Children) (Remote Hearing: Care and Placement
Orders) [2020] EWCA Civ 583). Case law
recognises the value and weight of oral argument
in court. Statistical data obtained through a
Freedom of Information request lend support to
these observations. The figures cover 264,000
orals hearings and 17,000 paper disposals
decided between 2014 and 2019. They show a
marked disparity in outcome between the two
forms of appeal.
Read more: Freemovement, https://is.gd/m2zybM
Government’s
Stance On Vietnamese Trafficking Victims is
Misconceived
Asylos and ARC Foundation recently released a
new report, Vietnam: Returned victims of
trafficking, about the risks of re-trafficking,
state protection and internal relocation for
Vietnamese victims of trafficking returned from
the UK. The report provides key new evidence
which needs to be considered by Home Office
decision-makers and tribunal judges dealing with
asylum claims by Vietnamese trafficking victims.
In my view, the evidence clearly shows that many
victims are at serious risk of re-trafficking on
return and are unlikely to be able to avail
themselves of sufficiency of protection and
internal relocation.
The Home Office’s Country Policy and Information
Note on Vietnam: Victims of trafficking,
released in April 2020, fails to reflect much of
this evidence. While the CPIN contains much
helpful material, its central conclusion – that
many victims will be able to access effective
protection from the state – is misconceived and
should not be followed.
It is clear from the report that the Vietnamese
state’s ability and willingness to provide
protection is limited, for a number of reasons:
The Vietnamese legal definition of trafficking
does not fully comply with international
standards. Some victims of trafficking will not
be recognised as victims under Vietnamese law
and will therefore be unable to access state
protection, services and accommodation Access to
shelters and rehabilitation assistance requires
a police certificate. For many victims this is
extremely difficult to obtain. Some sources say
that most victims do not get recognised, and
survey data suggests that only 1 in 10 victims
receive any assistance.
Read more: Freemovement, https://is.gd/JREAkJ
Immigration
Appeals Much More Likely to Succeed if
There’s an Oral Hearing
A person whose immigration application
to the Home Office has been refused sometimes
has a right of appeal. Prior to the Covid-19
pandemic, people essentially had a choice. Their
appeal could be heard in person, at court, in
front of a judge who would listen to their
evidence live (referred to as an “oral
hearing”). Or they could opt for a judge to
decide the outcome without a hearing, by only
reading the documents in the case to reach a
conclusion (a “paper disposal”). The
immigration tribunals want to decide a
substantial number of appeals on the papers
during the pandemic, as set out in a recent
Pilot Practice Direction. Many practitioners
fear this may be indicative of a change of
approach even after the lockdown has ended.
Whilst some may be suitable for paper disposal,
in immigration cases the truthfulness of
witnesses is often the central factor in
dispute. It has been of concern that even in
such cases, judges are canvassing whether
representatives will give consent for matters to
go ahead by paper consideration alone. Other
areas of law are similarly grappling with issues
of fairness in cases affected by the pandemic
(in the family context, for example, see Re A
(Children) (Remote Hearing: Care and Placement
Orders) [2020] EWCA Civ 583). Case law
recognises the value and weight of oral argument
in court. Statistical data obtained through a
Freedom of Information request lend support to
these observations. The figures cover 264,000
orals hearings and 17,000 paper disposals
decided between 2014 and 2019. They show a
marked disparity in outcome between the two
forms of appeal.
Read more: Freemovement, https://is.gd/m2zybM
Government’s
Stance On Vietnamese Trafficking Victims is
Misconceived
Asylos and ARC Foundation recently
released a new report, Vietnam: Returned victims
of trafficking, about the risks of
re-trafficking, state protection and internal
relocation for Vietnamese victims of trafficking
returned from the UK. The report provides key
new evidence which needs to be considered by
Home Office decision-makers and tribunal judges
dealing with asylum claims by Vietnamese
trafficking victims. In my view, the evidence
clearly shows that many victims are at serious
risk of re-trafficking on return and are
unlikely to be able to avail themselves of
sufficiency of protection and internal
relocation.
The Home Office’s Country Policy and Information
Note on Vietnam: Victims of trafficking,
released in April 2020, fails to reflect much of
this evidence. While the CPIN contains much
helpful material, its central conclusion – that
many victims will be able to access effective
protection from the state – is misconceived and
should not be followed.
It is clear from the report that the Vietnamese
state’s ability and willingness to provide
protection is limited, for a number of reasons:
The Vietnamese legal definition of trafficking
does not fully comply with international
standards. Some victims of trafficking will not
be recognised as victims under Vietnamese law
and will therefore be unable to access state
protection, services and accommodation Access to
shelters and rehabilitation assistance requires
a police certificate. For many victims this is
extremely difficult to obtain. Some sources say
that most victims do not get recognised, and
survey data suggests that only 1 in 10 victims
receive any assistance.
Read more: Freemovement, https://is.gd/JREAkJ
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