New
Immigration Plans Make the Same Old Mistakes
This week the government's immigration bill was
voted through the House of Commons, essentially
repealing EU citizens' rights in the UK and
bringing the country one step closer to its new
immigration system. What it did not do is detail
that system, leaving that to be introduced by
secondary legislation, with far less
parliamentary scrutiny, at a time when that
scrutiny is desperately needed. This means
parliament won't fully debate or even vote on
the detail of the new arrangements. It also has
the consequence that the Home Office will be
able to change the immigration rules with little
notice, making it harder for businesses to stay
on top of the rules. The current immigration
rule book is over 1,000 pages long, as the
government has introduced multiple changes to
try and remedy operational problems. Given the
last system was rendered virtually unusable, the
new system should have been an opportunity to
move major changes into primary legislation.
Covid-19 has highlighted the serious
shortcomings in the government's proposed
points-based system and how it would
detrimentally impact the UK economy. Although
the bill survived the vote, there are growing
concerns across the political spectrum that the
legislation is not fit for the economic needs of
the country – not now, and not for the future.
Sophia Wolpers and Laurel Hart, Politics.co.uk,
https://is.gd/w01xQL
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Chinese
Victim of Human Trafficking Wins Appeal
Against Deportation Decision
A Chinese national who was identified as a
victim of modern slavery but was initially
refused discretionary leave to remain in the UK
has successfully petitioned for a reduction of
the decision. The petitioner, ZL, challenged the
decision of the Home Secretary on the grounds
that she had erred in assessing the risk of him
being re-trafficked on his return to China as
well as the risks to the medical treatment of
his son, who suffered from a form of epilepsy.
The petition was heard in the Outer House of the
Court of Session by Lord Armstrong.
No account taken: The respondent determined that
the petitioner was a victim of trafficking and
modern slavery in November 2018. In June 2019, a
decision letter was sent refusing his
application for discretionary leave to remain in
the UK. The petitioner submitted that his return
to China would render him vulnerable to the risk
of being re-trafficked in two ways; by falling
back into the hands of those who had originally
trafficked him, and by being trafficked by
others as a consequence of his vulnerability as
someone who was already a victim of trafficking.
In her assessment of his application, it was
argued that the respondent had failed to
consider the second of these.
Scottish Legal News, https://is.gd/FRWJWB
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EU Member
States Must Grant Compensation to Any Victim
of a Violent Intentional Crime Regardless of
His or Her Residence
Even if compensation does not mean full
reparation of the damages, its amount cannot be
merely symbolic
In October 2005, Ms. BV was the victim of sexual
violence. This crime was committed in Italy, her
country of residence. The offenders were
sentenced to imprisonment and ordered to pay
immediately €50,000 in her favour. Nevertheless,
she was unable to obtain any of this amount, as
the offenders absconded. In 2009, BV brought an
action before the Italian courts against the
Italian State, seeking damages for Italy’s
failure to transpose the Directive 2004/80/EC
relating to compensation to crime victims1.
In 2016, a judgment of the Court of Justice
found Italy to have infringed the Directive2.
The same year, Italy introduced a law
establishing, retroactively from 30 June 2005, a
national scheme on compensation covering both
internal and cross-border situations. For
victims of sexual violence, a fixed amount of
€4,800 was provided as a compensation due by the
Italian State when the victim is unable to
obtain reparation from the offender.
The referring Corte Suprema di Cassazione (Court
of Cassation, Italy), which must decide on BV’s
case in the last instance, asks the Court
whether the Directive requires each Member State
to introduce a national scheme on compensation
covering just victims in cross-border situations
or all victims of violent intentional crimes
committed in its territory. Furthermore, the
referring court asks whether compensation fixed
by the Italian law at €4,800 to victims of
sexual violence is ‘fair and appropriate’, in
accordance with the Directive.
In today’s Opinion, Advocate General Michal
Bobek considers that the Court should reply to
the first question in the sense that the
Directive requires Member states to establish
national schemes on compensation for any victim
of a violent intentional crime committed on
their territories, regardless of his or her
residence.
Court of Justice of the European Union, https://is.gd/2jfwgV
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Asylum
Seekers Don’t Tell All At First Opportunity
This hardly comes as news to many of those who
work with asylum seekers. For many years the
icebreaker for training sessions delivered by
one of the main foundations working with torture
survivors was to instruct attendees to turn to
the person to their left and tell their most
embarrassing secret. Of course, no-one could or
would, yet that is exactly what we expect
refugees to do. Nevertheless, this is an
interesting new study from the Helen Bamber
Foundation: The key message from this study –
for clinicians writing expert reports, for
solicitors and barristers involved in asylum
cases, for Home Office decision makers and for
Immigration Tribunal judges – is that people
seeking asylum cannot be expected to tell their
full story to the first person they have met in
a first or single appointment, in a relationship
that has no context or opportunity for trust-
building.
This study suggests that it is difficult for
people seeking asylum to disclose traumatic
experiences at a first or single meeting with a
professional and therefore people seeking asylum
may not do so at that stage. For the full report
see The Texture of Narrative Dilemmas: A
qualitative study in frontline professionals
working with asylum seekers in the UK by Abbas
P, von Werthern M, Katona C and Brady F
published in the BJPsych Bulletin online by
Cambridge University Press: 22 April 2020 DOI:
https://doi.org/10.1192/bjb.2020.33.
Read more: Freemovement, https://is.gd/IQPP2T
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European
Commission Accuses UK Government of
Violating EU Citizens’ Rights
The European Commission has formally accused the
UK government of breaching EU law on free
movement of people. Brussels today launched
“infringement proceedings” against the UK, the
process used to force EU member countries to
comply with their legal obligations. The
UK is no longer a member of the European Union,
but the Commission points out that EU free
movement law continues to apply here until the
end of the post-Brexit transition period.
According to a Commission press release, the
charges are: UK national legislation limits the
scope of beneficiaries of EU free movement law
in the United Kingdom as well as the
possibilities for EU citizens and their family
members to appeal administrative decisions
restricting free movement rights. The Commission
considers that the United Kingdom has thereby
breached the Free Movement Directive 2004/38/EC
as well as EU rules on freedom of movement of EU
citizens (Article 21 TFEU), freedom of movement
of workers (Article 45 TFEU) and freedom of
establishment (Article 49 TFEU). The press
release does not give any more detail on what
the alleged breaches are, and letters of formal
notice are not routinely published. But a
Commission spokesperson told Free Movement:
Read more: Freemovement, https://is.gd/9Xm0Xh
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Home
Office Questionable Priorities! In the
Middle of a Pandemic
If you can say one thing about the Home
Office, it’s that they have questionable
priorities! In the middle of a pandemic, with
thousands of migrants not knowing whether or not
they will have to leave the UK in just over two
weeks, the department has decided to publish a
statement of changes to the Immigration Rules on
a host of unrelated issues. Thankfully, there is
at least some good news, in particular for
victims of domestic abuse and family members of
Northern Irish people. There are less good news
for representatives of overseas businesses. Most
of the changes summarised below come into force
on 4 June 2020.
The more significant of the changes to the EU
Settlement Scheme, including the Northern
Ireland concession, take effect on 24 August
2020. As always, practitioners are advised to
read the new Rules in full before making a new
application, but we hope this post will
highlight the main changes to be aware of. The
wording of Appendix EU gets more and more
convoluted with each new statement of changes —
ironic given that the Home Office is promising
to simplify the Rules by January 2021. That
said, the changes this time around are mostly
positive.
Read more: Freemovement, https://is.gd/YcNE3d
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It Just Got
More Difficult For Europeans to Become
British Citizens
The Home Office has decided to make it
more difficult for European residents to become
British citizens. EU citizens with settled
status who apply for naturalisation may now have
to provide evidence that they have been living
in the UK legally, according an update to
government nationality policy released on 15
May. One of the requirements for naturalisation
as a British citizen is to have lived in the UK
for five years (or three years if married to a
Brit). Time living here in breach of UK
immigration law doesn’t count. The Home Office
has long taken the view that EU citizens
physically present in the UK but who do not have
a right of residence under EU law are in breach
of UK immigration law. Unknowingly lacking a
right to reside is surprisingly common — many
people without comprehensive sickness insurance
were caught out by this in the past.
Because of Brexit, European residents and their
family members have been offered immigration
status under UK law (instead of EU law). Getting
the new “settled status” does not require proof
of a previous right to reside — it is mostly
based on simple presence in the UK. But when
people with settled status come to apply for
citizenship, the Home Office is now saying that
the right to reside issue must be dealt with in
their application. Simply having settled status
is not enough, in this context. Settled status
will serve as proof of being free of immigration
time restrictions (another of the naturalisation
requirements) but will not do in terms of
showing that the person’s residence up to the
point of getting settled status was in
accordance with immigration law.
Read more: Freemovement, https://is.gd/VMAVHF
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Migrants
Falling Through Cracks In Covid-19
Homelessness Support
Undocumented migrants are being forced
to sleep rough during the coronavirus pandemic
amid an increase in illegal evictions and a lack
of government guidance, lawyers have warned.
Hackney Community Law Centre, in east London,
estimates that inquiries from individuals who
have been illegally evicted or threatened with
illegal eviction have doubled since the UK went
into lockdown on 23 March.
Nathaniel Mathews, one of the centre’s
senior solicitors, told EachOther that lawyers
have had to intervene in four cases to ensure
that councils rehouse those who have been
illegally evicted. In one case a man in his 50s,
who has lived in the UK for almost 20 years,
spent several nights sleeping on buses before
his local authority could find him emergency
housing. His landlord unlawfully changed the
locks to his home when he could no longer afford
to pay his rent. His cash-in-hand building work
dried up amid the pandemic.
Mathews said that the man, whose immigration
status is unresolved, was “frightened of his
landlord” and so did not want to legally
challenge his eviction. “So, we made an approach
to the local authority and he has been housed
for now,” he added. Mathews spoke of the centre
having to “threaten or even take legal action”
against councils to get homeless people rehoused
in lockdown. This is despite a letter the
homelessness minister, Luke Hall, issued to
local authorities in England in March requesting
they urgently house all rough sleepers in
hotels, hostels, B&Bs and other
accommodation. Hall added that councils should
provide shelter to migrants unable to access
benefits under the Home Office’s No Recourse to
Public Funds (NRPF) policy.
Read more: Each Other, https://is.gd/ln3ggy
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There Is No
180-Day A Year Rule For Visitors to the UK
One of the most common UK immigration
myths is that there is a maximum permitted stay
of 180 days in a year (or six months in 12
months) for UK visit visa holders. This
myth has been propagated not just by migrants
but also by advisers and even UK Border Force
staff. In reality, there is no such
rule. The widely held belief goes
something like this: a non-EEA national visitor
to the UK can spend no more than six months out
of any 12 inside the UK, or alternatively no
more than 180 days a year. For example if the
visitor spends three months in the UK between
January and March, then comes back in the summer
with a new visit visa, they only have three
months “left” to spend in the UK for that year —
even if the new visa grants leave for six
months.
As with other myths, this tale varies in its
telling, with some believing that the six-month
cap runs from January to December and “resets”
each calendar year, while others believe it is
based on a rolling 12-month period. I’ve seen
impressive Excel spreadsheets charting both,
sometimes created at the insistence of an
overzealous / bored immigration official.
Despite there being no such rule or requirement,
adherents to this myth do tend to have less
trouble being granted entry to the UK as
visitors. That’s because staying in the UK for
an extended period does increase the risk of
being refused a visit visa for the next trip, as
it could be an indication that the stay is not a
genuine visit. It’s just that spending a total
of 181 days a year in the UK is not really any
more of a red flag than a total of 180.
Read more: Freemovement, https://is.gd/tRvO05
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