News & Views Monday 18th May to Sunday 24th May 2020

 
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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