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  News & Views Monday 18th September to Sunday 24th September 2017  
Living on the Edge: Claimants, Asylum Seekers, Pensioners, Zero Hour Workers, Sex Workers, Refusing Dickensian Destitution and Other Social Murder

Public meeting: Monday 25th September 6:30-8:30pm
The Cowley Club, 12 London Road
Brighton BN1 4JA Wheelchair accessible

Austerity on top of pay cuts, benefit sanctions, zero hour contracts, the wages cap . . . have put millions below the breadline. Over 1.25 million people, including over 300,000 children are destitute in the UK. Those of us who are destitute don’t eat regularly, can’t afford clothes and toiletries, sleep in parks or on buses, or are made dependent on others, sometimes strangers, to have a roof over our head, and have our children taken from us. Women, austerity’s primary target, are often the most invisible.

Being destitute and undocumented means having to live under the radar. Grenfell survivors have said that many more people died in the fire than is known, because fear of deportation keeps people away from the authorities and uncounted. Like the disregard of people’s lives at Grenfell, the deliberate policy of destitution is “social murder”.

The struggle against destitution is at one with the demands and aspirations of the new social movement that has formed around the Labour Party led by Jeremy Corbyn and John McDonnell. Strengthening this movement will help ensure that the Labour manifesto pledges to end austerity, zero hour contracts, benefit sanctions and reform a cruel and discriminatory asylum process, become reality.

Meeting organised by Black Women’s Rape Action Project, Brighton Migrant Solidarity, English Collective of Prostitutes

Read more:

Chinese Man Dies at Dungavel Immigration Removal Centre


An investigation has been launched after a Chinese man was found dead at an immigration detention centre. The body was discovered at Dungavel Immigration Removal Centre in Strathaven, South Lanarkshire, on Tuesday 19th September 2017. Officers from the Prisons and Probation Ombudsman will now begin investigating the circumstances surrounding his death.

The death has been confirmed by the Home Office. A spokesman said: "We can confirm that a male Chinese national who was detained at Dungavel Immigration Removal Centre was found dead on 19 September. Our thoughts are with his loved ones at this very sad time. As is the case with any death in detention, the police have been informed and a full independent investigation will be conducted by the Prisons and Probation Ombudsman." Plans were announced last year to close Dungavel at the end of 2017, with a short-term holding centre to be built in Paisley. However, Renfrewshire Council's planning board rejected the application and the Home Office confirmed Dungavel will remain open.

Source BBC News, http://bbc.in/2xvrR3s

This is the second death of a detainee this month, a polish man died in Harmondsworth IRC on Sunday 3rd September.



Conflict Keeps 27 Million Children Out of School, With Girls at High Risk of Abuse


Some 27 million children are out of school due to conflict, with girls facing a heightened risk of sexual and gender-based violence, the United Nations said in a report released today, calling on States and international organizations to integrate all uprooted children into the education system where they live. "Many of the 50 million uprooted children in the world are in desperate need of education - not despite being uprooted from their homes but because they are uprooted from their homes," the UN Children's Fund (UNICEF) stressed in the report. "For without education, how will they gain knowledge and skills to rebuild their lives? How will they be able to chart a path to a more peaceful and prosperous future for themselves, their families, their communities and the world?" queried the agency.
                                                       
Read more: Refworld, http://bit.ly/2xbBwwc



Samim Bigzad Definitely Back in the UK

Samim hasflown back from Istanbul yesterday, plane arrived in the UK 22.45 Sunday 17th September and the weary traveller put his feet back on UK Soil at 23.30

Now Bigzad is back in the UK there will no doubt be at least one further court hearing for the Home Office to explain itself. This may well be what is called a committal hearing. A committal hearing is a serious matter as the listing information required by the Practice Direction makes very plain:

For a full explainer of the events go to: http://bit.ly/2f5jph7




Age Assessment Legal Challenges Should Be Made by Judicial Review

Individuals seeking to challenge an age assessment in court should do so by judicial review, a judge has ruled. Lord Woolman in the Court of Session held that while an action for declarator was also a competent remedy, there were “decisive advantages” to proceeding by way of judicial review. The decision came in an action brought by “AU”, a refugee from Afghanistan who disputed an age assessment by Glasgow City Council social workers after they determined that he was at least three years older than he claimed. The issue in the case was the correct procedure by which to challenge an age assessment.

Read more: Scottish Legal News, http://bit.ly/2y9FJO9

Irish High Court Refuses  to Return Children Wrongfully Removed From England

The father of two children who were wrongfully removed from their habitual residence in England in July 2015 has had his application for their return pursuant to The Hague Convention refused in the Irish High Court. Whilst it was accepted that the mother had engaged in subterfuge and concealment in respect of the removal of the children, and that the actions of the mother in failing to come clean at the outset about her removal of the children to Ireland on a permanent basis contributed to the delay in the case, Justice Reynolds exercised the discretion of the Court in refusing the application as she was satisfied that the children were well settled in Ireland.

Read more: Seosamh Gráinséir, Irish Legal News http://bit.ly/2x40HhW



Continuing Conflicts: CAR risks Return to Civil War

Central African Republic is on the brink and without a safety net. Amnesty International says (in a report detailing terrible cruelty) that civilians are the direct targets of a wave of violence by sectarian militia, forcing those that can to flee. More than 1.1 million people have been displaced, the “highest level ever”, notes UNHCR. The violence has been particularly acute in the centre, northwest, east, and southeast. The insecurity is blocking humanitarian access to those in need, with Médecins Sans Frontières announcing this week it had been forced to pull out of the town of Zemio as a result of recent attacks. Behind the violence is the largely Muslim UPC (see earlier IRIN coverage) and rival primarily Christian anti-balaka and assorted armed “self-defence” groups. Their victims are civilians on either side of the religious divide. Amnesty is scathing (as are most people in the country) over the ineffectiveness of the UN peacekeeping force. “MINUSCA has failed to prevent these abuses,” the rights group says. “Amnesty International is calling for a review of MINUSCA’s capacity to carry out its mandate, covering factors such as training, equipment, coordination and the number of uniformed and civilian personnel.”

Do they ever learn? MINUSCA was part of a sex abuse scandal (see IRIN’s exclusive interview with Anders Kompass) in 2014, and now there are fresh allegations over the mishandling of additional cases. The US-based Code Blue Campaign says it has received 14 internal UN reports that demonstrate how investigations were a botched and “manifestly sham process”. According to the accountability NGO, the leaked files reveal the hidden scope of sex abuse by UN peacekeepers. A new report by the NGO Redress, ahead of a high-level-meeting on Monday at UN headquarters, says the world body must do much more to enable victims of sexual exploitation and abuse by peacekeepers to “access reparation, support and assistance”. Something’s got to give. Source IRIN


CPIN Bangladesh: Sexual Orientation and Gender Identity

Basis of claim
1.1.1 Fear of persecution or serious harm by the state and/or non-state actors due to the person’s actual or perceived sexual orientation and/or gender identity.
1.2 Points to note
1.2.1 This note provides policy guidance on the general situation of gay men, lesbians, bisexuals and transgender persons (including hijras). They are referred collectively as ‘LGBT persons’, though the experiences of each group may differ.
1.2.2 The position of LGBT individuals in Bangladesh contrasts and should not be confused with that of hijras, who occupy a separate space in Bangladeshi society and are regarded as a third gender.
1.2.3 Not all transgender persons are hijras, even though they may be viewed as such.
1.2.4 Decision makers must refer to the Asylum Instructions on Sexual identity issues in the asylum claim and Gender identity issues in the asylum claim.

Published on Refworld, 19/09/2017
http://www.refworld.org/docid/59c105de2d.html



Asylum Research Consultancy (ARC) COI Update Vol. 154

This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK). The ‘Legal Update’ and ‘UK Home Office Publications Update’ sections include information covering 25thJuly to 4th September, whilst the ‘Country News and Publications’ section covers 28th August to 4th September 2017.

Source ARC, http://bit.ly/2fiJkFR



More Than a Million of Europe's Asylum Seekers Left in Limbo

More than 1.1 million people who sought asylum in Europe during the continent’s biggest refugee crisis since the second world war were still waiting up to two years later to hear whether they would be allowed to stay, according to a study. In the first Europe-wide analysis of the status of asylum seekers who arrived in Norway, Switzerland and the 28-member EU during the 2015-16 crisis, the Pew Research Center estimated more than half were still in limbo in December last year.

The research also produced individual country data showing that how fast applications were handled varied dramatically according not just to the nationality of the asylum seeker but to the country in which they filed their demand, with Hungary and Greece proving particularly slow. With countries working through the backlog at wildly different rates and asylum seekers continuing to arrive, the researchers said the most recent available figures showed pending asylum applications still numbered 990,500 in June this year. The study analysed data from Eurostat, the European statistics authority, and other sources, including NGOs, to estimate how many of the 2.2 million who applied for asylum during the refugee surge still did not have a decision at the end of last year.

Read more: Jon Henley, Guardian, http://bit.ly/2fbRg7W



40 Million People Caught in Modern Slavery, 152 Million in Child Labour

More than 40 million people around the world were victims of modern slavery – forced labour and forced marriage – in 2016, a United Nations study has found, revealing the true scale of such practices that disproportionately affect women and girls. Global estimates of modern slavery: Forced labour and forced marriage show that among the victims, about 25 million were in forced labour, and 15 million were in forced marriage. Of the total, almost 29 million – or 71 per cent – are women and girls. Women represent 99 per cent of victims of forced labour in the commercial sex industry and 84 per cent of people in forced marriage.

The study was prepared jointly by the UN International Labour Organization (ILO) and Walk Free Foundation, in partnership with the UN International Organization for Migration (IOM). A separate ILO study, Global estimates of child labour: Results and trends, 2012-2016, confirmed that about 152 million children, aged between 5 and 17, were subject to child labour. Child labour remains concentrated primarily in agriculture, at 70.9 per cent. Almost one in five child labourers, or 17.1 per cent, work in the services sector while 11.9 per cent of child labourers work in industry.

Read more: UN News, http://bit.ly/2fzyoAu



UK Faces Rebuke Over Refusal to Back More Than 100 UN Human Rights Targets

Britain is heading for a confrontation this week at the UN human rights council over its failure to support more than 100 recommendations on subjects ranging from the rights of children to the international law on abortion. David Isaac, chair of the Equality and Human Rights Commission (EHRC), will attend the UN’s universal periodic review (UPR) of the UK’s human rights record in Geneva, a process which takes place for every country once every five years.

Among the recommendations that the government has declined to back, a number outline the need for the UK to limit how long someone can be held in an immigration detention centre. The UK is the only European country without such a time limit. Britain has also declined to support recommendations on the detention of children in immigration centres. Of a total of 229 recommendations by UN members, the government will confirm that it is supporting just 96 – 42% of the total. The government has chosen simply to “note” the remainder.

Read more: Jamie Doward, Guardian, http://bit.ly/2f2u5Ns




Decision to Deport Nigerian Foreign Criminal No Breach of Article 8 but Note Very Strong Dissenting Opinion


The case Ndidi v. the United Kingdom (application no. 41215/14) concerned a Nigerian national's complaint about his deportation from the United Kingdom. Mr Ndidi, the applicant, arrived with his mother in the UK aged two. He had an escalating history of offending from the age of 12, with periods spent in institutions for young offenders. He was released in March 2011, aged 24, and served with a deportation order. All his appeals were unsuccessful. He is currently awaiting deportation, pending an application to the Nigerian authorities for a valid travel document.

In his complaint to the European Court of Human Rights Mr Ndidi alleged in particular that his deportation would constitute a disproportionate interference with his right to respect for his family and private life, notably with his son who was born in 2012 to a British national with no connection to Nigeria.

In Chamber judgment! in the case the European Court held, by six votes to one, that there had been: no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The Court considered that Mr Ndidi's case required careful scrutiny, given the length of his residence in the UK, his relationship with his son and other family members there, and his limited ties to his home country. However, the Court saw no grounds for calling into question the domestic authorities' decision to deport him. All the domestic decision-makers had given thorough and careful consideration to the requirements of Article 8 of the Convention in the case, including the requirement that the deportation order had to strike a fair balance between Mr Ndidi's right to private and family life, on the one hand, and the community's interests, on the other. The Court pointed out in particular that there would have to be strong reasons for it to carry out a fresh assessment of this balancing exercise, especially where independent and impartial domestic courts had carefully examined the facts of the case, applying the relevant human rights standards consistently with the European Convention and its case-law.

Read more ECtHR press release http://bit.ly/2h57KiC :

Read the full judgment:  http://bit.ly/2waH1vy

Dissenting Opinion of Judge Turkovi?

1. To my great regret, I am unable to subscribe to the majority’s conclusion that the applicant’s deportation would not be in breach of Article 8 of the Convention.

2. The Court recognized in A.A. v. the United Kingdom (no. 8000/08, 20 September 2011) that in cases in which the applicant has not been yet expelled at the time of the Court’s decision, the Court itself must assess the compatibility with the Convention of the applicant’s actual expulsion with reference to the facts known to the ECHR at the time of the proceedings before it, but post-dating the domestic proceedings. Relying on its well-established case-law, the Court indicated that in cases where deportation is intended to satisfy the aim of preventing disorder or crime, the period of time which has passed since the offence was committed and the applicant’s conduct throughout that period are particularly significant. The Court further specified that in cases in which the applicant has not committed further offences, and where he or she made efforts to rehabilitate himself or herself and to reintegrate into society, and where his risk of reoffending was assessed to be low, the Government are required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his or her deportation necessary in a democratic society (see A.A. v. the United Kingdom, cited above, §§ 63 and 68).

3. In the present case, the majority took the position that there was “no change in the applicant’s circumstances since the date of the last domestic decision which would provide the Court with strong reasons to substitute its own assessment of proportionality for that of the domestic authorities” (see paragraph 81 of the judgment). The majority completely disregarded the fact that a considerable period of time (10 years) has elapsed since the offence was committed, since the applicant was released from the Young Offenders’ Institution under licence (6 and a half years) and since the licence expired (4 and a half years), and that during that period the applicant has not committed any further offences and has demonstrated serious efforts to rehabilitate himself and to reintegrate into society. His conduct shows genuine dissociation from his crime. All these factors have an important impact on the assessment of the risk which the applicant poses to society.[1] Thus, I cannot agree with the majority that there has been no change in the applicant’s circumstances since the date of the last domestic decision which should prompt the Court to substitute its own assessment of proportionality for that of the domestic authorities. This does not mean that the Court would necessarily take a different position from the domestic authorities; in such circumstances, however, as was established in A.A. v. the United Kingdom, the Government should be required to provide further support for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his or her deportation necessary in a democratic society. Indeed, any other approach, as was emphasised in the same case (cited above, § 67), “would render the protection of the Convention theoretical and illusory by allowing Contracting States to expel applicants months, even years, after a final order had been made notwithstanding the fact that such expulsion would be disproportionate having regard to subsequent developments” (ibid.).

4. In the present case, the majority has considerably limited the possibility for the Court to take subsequent developments into consideration in cases in which the applicant has not been yet expelled at the time of the decision of the Court. It seems that, as opposed to the criteria laid down in A.A. v. the United Kingdom, the Court is now requiring the applicant to demonstrate that there has been some change in his or her circumstances over and above the fact that he or she did not commit further offences for a significant period of time after being released and assessed as posing a low risk of re-offending. It seems that the applicant is required to demonstrate some “exceptional” change in his or her circumstances post-dating the last decision of the domestic authorities in order for the Court even to engage in the assessment of proportionality. The approach the Court has taken in the present case is especially problematic in cases of expulsion of settled migrants who have lawfully spent all or the major part of their childhood and youth in the host country. This is all the more so where the person concerned is a settled migrant who was a juvenile (minor/young adult) at the time that the underlying offence(s) was committed, as is the case in respect of the applicant in the present case. Very serious reasons are required to justify their expulsion and the burden of proof is on the Government (see Maslov v. Austria [GC], no. 1638/03, § 76, ECHR 2008).

5. In view of the above considerations and of the Court’s conclusions in A.W. Khan v. the United Kingdom, where “having particular regard to the length of time that the applicant has been in the United Kingdom and his very young age at the time of his entry, the lack of any continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant has not reoffended following his release from prison in 2006, the Court has found that the applicant’s deportation from the United Kingdom would not be proportionate to the legitimate aim pursued and would therefore not be necessary in a democratic society” (see A.W. Khan v. the United Kingdom, no. 47486/06, § 50, 12 January 2010)[2], I cannot, without further support by the Government for their contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities at the present time, conclude that the applicant’s deportation would be a proportionate measure.

6. I am fully aware that the assessment of proportionality is and always will be fact-sensitive. I could not agree more with Lord Bingham that “there is in general no alternative to making a careful and informed evaluation of the facts of the particular case” and that “[t]he search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which Article 8 requires” (see Lord Bingham in EB (Kosovo) [2008] UKHL 41, [2009] 1 AC 1159 at [12]). However, an overly casuistic approach to the matter fails to achieve consistency in decision making and to bring certainty to the decision-making process, both at the national and European level. The new Immigration Rules were in part intended to bring greater clarity in this respect domestically (see MF (Nigeria) [2013] UKHL 41, [2009] EWCA Civ.1192 at para 34, citing the document produced by Ms Giovanetti QC).

7. The inconsistences in application of the Üner, Maslov and A.A. principles, some of which were identified above by way of example, may warrant their further clarification and/or elaboration. At a time when Europe is coping with the serious problems which partially originate in a poor record in terms of integration efforts, especially with regard to second-generation migrants, it is of utmost importance to balance wisely society’s impulse to attach greater weight to the public interest than to private and family life claims under Article 8 of the Convention. After all, it is impossible to make a sharp distinction between the two. It is in the public interest to protect the private- and family-life claims of long-term migrants.

8. In addition and separately from the above arguments, I cannot agree with the majority that in the present case the First-Tier Tribunal properly addressed the best interests of the child. The Tribunal indeed referred to the best interests of the child, but it failed to explain what was considered to be in the child’s best interests, what criteria this was based on and how the child’s interests were weighed against other considerations. The Tribunal failed to indicate clearly whether primary importance was accorded to the child’s interest[3]. Rather, it seems that the best interests of the child were treated merely as one of the considerations that weighs in the balance alongside other competing factors, and not as a factor that must rank higher than any other. All this does not necessarily mean that a proportionality test which included adequate treatment of the child’s best interest would ultimately have had a different conclusion from that at which the First-Tier Tribunal arrived. Nonetheless, failure to address the best interests of the child adequately should in itself constitute a procedural violation of Article 8.

[1] The research has shown that for those who do not reoffend within three years of release the likelihood of re-incarceration at a later point is greatly diminished. The risk of reoffending decreases over time. See Langan PA, Levin DJ. Recidivism of prisoners released in 1994.Washington, DC: Bureau of Justice Statistics; 2002. (Bureau of Justice Statistics Publication No. NCJ 193427).

[2] In both cases the applicants were sentenced for drug-related offences. In the present case, the applicant – who committed an offence when he had just turned 19 – was sentenced to seven years’ detention in a ‘Young Offenders’ Institution’ and in A.W. Khan the applicant – who was an adult when he committed an offence – was sentenced to seven years’ imprisonment. Both were released before serving the full term. Both applicants came to the UK at a very young age; in the present case the applicant was almost two and in A.W. Khan the applicant was three years old. Neither applicant reoffended following their release; in A.W. Khan this amounted to period of around three and a half years, and in the present case to a period of more than six years. Neither have any continuing ties to their native lands. Both fathered a child after committing an offence.

[3] The right of the child to have his or her best interests taken as primary consideration means that the child’s interests may not be considered on the same level as all other considerations; they have higher priority and thus a greater weight must be attached to what serves the child best than to other competing considerations. See General Comment No. 14, adopted by the UN Committee on the Rights of the Children at its 62nd session, 14 January-1 February 2013, p. 10. There are, however, circumstances in which the community or other parties might have superior interests (e.g. religious or economic) so that a child’s interests may not prevail.