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                               News & Views Monday 15th December to Sunday 21st December 2014

Charter Flights Between July 2014 and September 2014

1. Number of males removed: 526 - 2. Number of females removed: 34

3. Number of escorts: 1051 - 4. Number of flights: 11

5. To: Afghanistan / Kosovo / Albania / Nigeria / Ghana / Pakistan

6. Number of children: 0

Source: Response to 'Freedom of Information Request'


Detention of Asylum Seekers Not at Risk of Absconding Unlawful
The Court of Appeal ruled Tuesday 16th December 2014 that a second element of the Home Office's detained asylum process is unlawful. The Court found that the detention of asylum seekers who are not at risk of absconding whilst their appeals are pending is unlawful. The ruling is the second Court of Appeal defeat in a week for the government's immigration policy, following Monday's ruling that theÊguidance on legal aid for immigration cases is unlawful.

The charity'Detention Action' had challenged the lawfulness of detaining asylum-seekers during their appeals purely on the grounds that their claims could be processed quickly. Detention Action argued that asylum-seekers who are found to pose no risk of absconding should be released while their appeals are processed.

The Court of Appeal upheld Detention Action's appeal on the grounds that the policy on detaining asylum seekers during their appeals is not sufficiently clear and transparent. Further, the Court made an alternative finding that, on the material before it, the policy is not justified. Lord Justice Beatson found that: 'after the Secretary of State's decision and pending appeal, detention in the fast-track by the application of the Òquick processing' criteria cannot be said to be justified and is therefore not lawful'. That the evidence before the court: 'does not provide the sort of substantial fact-based justification that the Supreme CourtÉ indicated would be needed to justify an interference with a fundamental right.'

The Home Office has indicated that it has begun re-assessing the detention of all asylum appellants currently going through the Fast Track. It has indicated that it will assess all asylum appellants on the Fast Track, and release all who are not at risk of absconding. It expects to have made those decisions by 19 December 2014.

Detention Action's Director Jerome Phelps said: 'We welcome this judgment. Depriving someone of their liberty for administrative convenience is a grave step under any circumstances. Asylum seekers making appeals are in a situation of enormous stress. Where there is no risk that they will abscond, keeping them locked up cannot be justified. Given that the Fast Track has now twice been found to be operating unlawfully, we urge the government to undertake a fundamental review of the whole process.'

Sonal Ghelani of the Migrants' Law Project, the solicitor acting for Detention Action, said: 'It appears that the Home Office has been detaining asylum seekers unlawfully for their appeals for the last six years. It cannot be right or fair that the Home Secretary, as a party to an appeal, is entitled to detain her opponent when the effect of detention is to make the appellant's conduct of the appeal much more difficult and therefore to make it less likely that he or she will be successful.'

Detention Action
20 Years Supporting People in Detention & Campaigning for Change
www.detentionaction.org.uk


UKHO 30m Immigration Contract Has Led to 'Catalogue Of Chaos'

The Home Office entered into a botched £30m contract with an outsourcing firm that led to fewer than 1,000 illegal immigrants leaving Britain, an inquiry has concluded. The report, from the Chief Inspector of Borders and Immigration, was sat on by the Home Office for two months and was only released yesterday on the day before Parliament rises for Christmas.

It showed that less than 1 per cent of overstayers whose cases had been dealt with by Capita had departed after contact with the firm. It also concluded that Capita had mistakenly overstated the number of illegal immigrants leaving the country by more than a quarter. The report found that the so-called migration refusal pool the number of foreign nationals since December 2008 who have been refused leave to stay in the UK stood at 173,562 in June this year, compared with 174,057 in June 2012.

John Vine, the Chief Inspector, said his findings could 'undermine public confidence in immigration control' and called on the Home Office to do more to ensure that Capita 'records departures correctly and [that] removals statistics are not claimed in error'.
Read more: Indpendent, 17/12/14


Legal Aid Restrictions on Deportation Cases are Unlawful
Exceptional legal aid funding should be made available for those fighting deportation in difficult immigration cases, the court of appeal has ruled. The decision is a fresh blow for the justice secretary, Chris Grayling, who has made deep cuts in the legal aid bill. It is his seventh courtroom defeat following a series of judicial review setbacks. There has been widespread criticism of the way in which the Legal Aid Agency (LAA) resists providing support despite explicit legal provision in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) for funding in Òexceptional casesÓ.

Three appeal court judges, the master of the rolls, Lord Dyson, Lord Justice Richards and Lord Justice Sullivan, refused to overturn a ruling in the high court earlier this year which said that the guidance issued by Grayling was unlawful and too restrictive. The lower court had quashed refusals of legal aid in six cases where it said the guidance Òsets too high a thresholdÓ and produces unfairness by denying publicly funded legal advice to applicants in exceptional cases. The cases involved EU nationals appealing against decisions that they should be deported following criminal convictions, an alleged victim of trafficking from Nigeria and other cases involving the right to enter and remain in the UK.
Read more: Owen Bowcott, Guardian, 15/12/14


International Migrants Day - Home Office Protest

6:30 pm, Thursday 18th December 2014

Home Office, 2 Marsham Street, SW1P 4DF

Caled by: National Union of Students (International Students Campaign), National Union of Students (Black Students Campaign), London Black Revolutionaries, National Campaign Against Fees and Cuts and Docs Not Cops.

Migrants have been made the scapegoats of economic crisis and spending cuts of Britain. Migrants did not cause the economic recession and migrants did not slash welfare state. Instead, there have been a raft of researches from reputed institutions like UCL which demonstrate that there is a net economic benefit for the UK because of migration. However, with the rise of UKIP, major political parties including Labour have shifted to the right when it comes to immigration issues. This has impacted all immigrants - whether recent or 3rd generation immigrants, whether EU or non-EU immigrants. Islamophobia has been rife with blaming of Muslims in general.

With non-EU international students in net migration targets, the government is using all methods possible to discourage their stay in the UK. With the recent sponsorship revocation crisis of private colleges, more than 10,000 international students risk of being deported if they do not find another institution in a few months time.

David Cameron announced recently to cut benefits of EU immigrants, so much so, to "remove" them if they are unemployed in the UK for 6 months! This comes with the background of constant demonisation of eastern Europeans.

Non-EU international students will be forced to pay about £200 a year from next year to access NHS. This comes with the rhetoric that migrants have to "contribute" to Britain, when it is crystal clear that non-EU international students already contribute approximately £10 billion every year to British economy.

From December 1st, landlords in West Midlands region will be required by the government to ask for the identification of their tenants, many times involving the landlords keeping copies of their tenants' passport, visa and even birth certificate. We fear this will involve racial and xenophobic profiling.

We are against all of the above practices which have made migrants suffer despite our contribution to the British society. Therefore, we are protesting at Home Office, the epitome of the enforcement of these practices. Please join us in our call for a fairer world to migrants on International Migrants Day, December 18. Also, hashtag for the day devised by the United Nations is : #IAmAMigrant .

(For non-EU international students who want to attend the protest - here is a legal briefing for you. We are against the system which attempts to curb international students' right to protest. But please do check the briefing before deciding to come: Briefing link here . . . .


Asylum: Homosexuality
Lord Scriven to ask Her MajestyÕs Government what steps they will now take in the light of the judgment of the European Court of Justice on 2 December that refugees who claim asylum on the ground that they are homosexual should not have to undergo tests to prove it, that refusal to answer questions about their personal circumstances is not sufficient reason to reject their credibility, and that an applicantÕs failure to declare their homosexuality from the start of the asylum process is also not ground for rejection.

Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): The Government is carefully considering the full detail of the judgment but our initial view is that the UKÕs approach to considering asylum claims based on the grounds of sexual orientation is in line with the ruling. The UK has never required individuals to undergo tests in order to establish their sexuality.

Existing guidance, which was drawn up in conjunction with the UK Lesbian and Gay Immigration Group, the UN High Commissioner for Refugees and Stonewall, is clear that questions of a sexually explicit nature should not usually be asked. Late declaration of homosexuality is not in itself a reason for refusal but needs to be explained. The Government will shortly be publishing a revised version of its guidance and will ensure that the judgment is fully reflected in it.
House of Lords / 15 Dec 2014 : Column WA2


Non-EU Family Members do Not Need Visa to Enter UK
Britain cannot impose a blanket visa requirement on family members originally from outside Europe but who have valid EU residence rights, the European court of justice has ruled. The decision is another setback in the governmentÕs campaign to control immigration from the European Union.

Concluding that the EUÕs freedom of movement rules trumped British claims that visas were needed to combat abuse of the EU residence card system, the judges in Luxembourg said the Colombian wife of Sean McCarthy, a dual British and Irish national living in Spain, did not need a UK visa or family permit to visit Britain.

The high court referred the case to the ECJ after McCarthy contested UK insistence on a family permit or visa, valid for six months, for his wife, Helena, every time they visit Britain. The couple have two children, both British nationals. The ECJ decided that Helena McCarthyÕs Spanish residence card entitled her to travel to Britain without first obtaining a UK visa in Spain.
Read more: Ian Traynor, Guardian 18/12/14


Justice Blindfolded? The Case of Jimmy Mubenga
Following the acquittal on 16 December of the G4S guards charged with the manslaughter of Jimmy Mubenga, the judge told the jury that they were not to be concerned if they later read about material that was ruled inadmissible at the trial.

At the very beginning of the trial, reporting restrictions had been imposed which prevented any media reporting of the unlawful killing verdict, the coroner's report or the virulently racist tweets and other evidence of racism on the part of the security guards, pending legal argument as to whether the jury could be allowed to hear this evidence or not. Later in the trial, the judge ruled that the jury should not hear any of this evidence.

Hearing about the huge volume of horrible racist tweets and jokes received and re-sent by Terrence Hughes, and the small number by Tribelnig (none were on Kaler's phone), would, defence lawyers argued, 'release an unpredictable cloud of prejudice' in the jury, preventing a fair trial. The judge acceded to the argument - so the jury reached its verdict in ignorance both of the previous jury's conclusions and of the evidence of racist attitudes held by one or more of the men tasked with restraining Mubenga on the plane.
Read more: Francis Webber, IRR News, <> 17/12/14


Jimmy Mubenga's Widow Shocked as G4S Guards Cleared
The widow of Jimmy Mubenga, the Angolan man who died after being physically restrained on a deportation flight, said she was "shocked and disappointed" by the acquittal of three private security guards who were charged with his killing. Terrence Hughes, 53, Colin Kaler, 52 and Stuart Tribelnig, 39, worked for G4S on contract to the Home Office, and were accused of manslaughter by forcing the 46-year-old father's head down and restricting his breathing as a British Airways flight prepared to take off at Heathrow airport on 12 October 2010. A jury at the Old Bailey cleared them of the charges on Tuesday after a six-week trial.

"For the last four years I have fought for justice for Jimmy and our five children," said Adrienne Makenda Kambana. "It is hard for me to understand how the jury reached this decision with all the overwhelming evidence that Jimmy said over and over that he could not breathe." The jury was not told that an inquest last year returned a verdict of unlawful killing in the case. Neither was the jury told that the inquest had heard that two of the guards – Hughes and Tribelnig – had a string of racist "jokes" on their phones. Hughes's phone had 65 texts containing what the coroner, Karon Monaghan QC, said contained "very racially offensive material".
Read More: Guardian, <> 16/12/14


Early Day Motion 633: Distribution of Asylum Seekers

That this House believes that asylum seekers should be homed widely in the country to assist community assimilation and to share fairly the strains and burdens on services that newcomers create;

is astonished that Cardiff has 976 section 95 migrants, double the total in all of South East England outside of London and that Newport has 391,

while the constituency of the Home Secretary has one

and those of the Chancellor of the Exchequer and the Prime Minister have none;

and calls on hon. Members to encourage their areas to accept their responsibilities and welcome at least the average total of migrants homed elsewhere.

Sponsors: Flynn, Paul/ Hancock, Mike - House of Commons: <>16.12.2014


Asylum Research Consultancy (ARC) COI Update Volume 92
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 2nd December and 15th December 2014 - Volume 92  <>here . . .


Early Day Motion 624: Landlord Tenant Immigration Checks
That this House notes the introduction of the pilot scheme on 1 December 2014 of the requirement for private sector landlords to conduct immigration checks on their potential tenants; believes that the checks will lead to new fees from letting agents to all of Britain's nine million private tenants on moving to conduct these checks; further believes that almost no undocumented migrants will be caught as they will move into illegal tenancies and in doing so will create a new market for illegal and exploitative landlords; is concerned that the checks will encourage discrimination in the lettings process; further believes that it is morally objectionable to remove from any person access to shelter just as it would be to remove access to water or emergency medical care; and calls on the Government to abandon the scheme immediately.

Sponsors: Teather, Sarah / Durkan, Mark / McDonnell, John
House of Commons: 15.12.2014


Early Day Motion 628: Staff At Shelter Housing Charity
That this House supports workers at the housing charity Shelter in defending their terms and conditions and the service they provide to clients struggling with bad housing and homelessness; condemns the cuts to pay of up to £5,000 a year already implemented for new staff and threatened for existing staff which primarily affect the lowest-paid frontline service staff; disputes that Shelter must cut pay in order to compete for contracts; notes that the ability of staff to offer an excellent service is Shelter's strongest competitive advantage; further notes that cuts to pay will undermine Shelter's ability to recruit and retain the best staff; and calls on the management of Shelter to withdraw the proposals to cut pay for staff.

Sponsor: McDonnell, John / House of Commons: 15.12.2014


Right of Illegally Staying Third-Country Nationals to be Heard

Court of Justice of the European Union - Judgment in Case C-249/13

Directive 2008/115 sets out common standards and procedures in Member States for returning illegally staying third-country nationals

By today's judgment, the Court states, first, that the directive does not specify whether, and under what conditions, observance of the right of third-country nationals to be heard must be ensured before the adoption of a return decision concerning them. That right is however inherent in observance of the rights of defence, which is a fundamental principle of EU law. Next, the Court recalls the principles set out in the recent judgment of Mukarubega2, in particular, the general rule, to which there are exceptions, that a return decision must be issued with respect to a third-country national as soon as it has been determined that his stay is illegal. The purpose therefore of the right to be heard before the adoption of a return decision is to enable the person concerned to express his point of view on the legality of his stay and on whether any of the exceptions to the general rule3 are applicable. Similarly, under EU law, national authorities must take due account of the best interests of the child, family life and the state of health of the third-country national concerned and respect the principle of non-refoulement,4 so that the person concerned must be heard on that subject. Last, the right to be heard implies that the competent national authorities are under an obligation to enable the person concerned to express his point of view on the detailed arrangements for his return (such as the period allowed for departure and whether return is to be voluntary or coerced), with the possibility that the period for voluntary departure may be extended according to the specific circumstances of the individual case (such as the length of stay, the existence of children attending school and other family and social links).

Further, the Court declares that a competent national authority is not required to warn a third-country national that it is contemplating adopting a return decision with respect to him, or to disclose to him the information which it intends to rely on to justify that decision, or to allow him a period of reflection before seeking his observations. EU law5 does not establish any such detailed arrangements for an adversarial procedure. It is therefore sufficient if the person concerned has the opportunity effectively to submit his point of view on the subject of the illegality of his stay and reasons which might justify the non-adoption of a return decision. An exception must however be admitted where a third-country national could not reasonably suspect what evidence might be relied on against him or would objectively only be able to respond to it after certain checks or steps were taken with a view, in particular, to obtaining supporting documents. Further, the Court states that return decisions may always be challenged by legal action, so that the protection and defence of the person concerned against a decision which adversely affects him is ensured.

As regards whether the right to be heard includes the right to have legal assistance when being heard, the Court stated that a right to legal assistance is provided for by the directive only when an appeal has been brought in order to challenge a return decision. The Court adds however that an illegally staying third-country national may always have recourse, at his own expense, to the services of a legal adviser in order to have the benefit of the latter's assistance when being heard, provided that the exercise of that right does not affect the due progress of the return procedure and does not undermine the effective implementation of the directive. Member States are not required to bear the costs of that assistance by providing free legal aid. In this case, the Court finds that, when he was interviewed, Mr Boudjlida did not request the assistance of a legal adviser.

Lastly, the Court considers that the length of the interview of an illegally staying third-country national (only 30 minutes in the case of Mr Boudjlida) has no decisive bearing on respect for the right to be heard, provided that the third-country national had the opportunity to be heard sufficiently on the legality of his stay and on his personal situation (as applies in this case).


 


Last updated 19 December, 2014