Rwanda: UK Cannot Ensure That Asylum Applicants’ Rights Are Protected Once They Arrive

Thanks to the Constitutional Reform and Governance Act 2010, treaties must be laid before Parliament for 21 days, where they can be debated, evaluated and, in the case of the Commons, their ratification endorsed or delayed. That is a powerful stay over the ability of government to make international treaties without parliamentary consent. Today, Monday 6th Februaty, we will hear from members of the International Agreements Committee who wrote this report: On behalf of this House, they and other members of the committee examine every treaty and report on it.

However, with the Rwanda accord, we see an issue with enormous human rights and rule of law implications, potentially affecting the lives of thousands, yet the agreement was signed not as a treaty but as a memorandum of understanding. This allowed the Government to bypass Parliament; indeed, it came into force on signature without any opportunity for parliamentary scrutiny.

Two weeks ago, on 12 January, two Lords committee reports on the usurping of parliamentary power by Ministers were debated in this Chamber. It was stated: “The abuse of delegated power is in effect an abuse of Parliament and an abuse of democracy.”—[Official Report, 12/1/23; col. 1536.] The first report, Government by Diktat, was in the committee’s words, “a stark warning—that the balance of power between Parliament and Government has ... been shifting away from Parliament”.

The second, Democracy Denied?, was an alert “to a potentially serious threat to a cornerstone of our constitution—effective parliamentary scrutiny of legislation”, it being a “matter of urgency that Parliament should … consider how the balance of power can be re-set”.

However, we noted in the report that, since this was agreed by a non-binding MoU, its so-called safeguards are not legally enforceable, meaning that neither the individuals concerned nor the UK can ensure that asylum applicants’ rights are protected once they arrive in Rwanda.

Our committee concluded that the Government should not have signed a deal with Rwanda merely as a political statement without parliamentary scrutiny. It has significant consequences for individuals and their rights; it involves public expenditure; and it is a Toggle showing location ofColumn 1038major new policy, with far-reaching implications. Surely something of this importance is the business of Parliament and not just of Ministers.

Read the full debate: House of Lords, https://rb.gy/qowoum

Migrants Handcuffed and Self-Harming in UK’s Chaotic Asylum System

Asylum seekers were handcuffed and restrained after self-harming in scenes of desperation and chaos at a controversial migrant processing centre, The Independent can reveal. Shocking accounts by Home Office staff and private contractors record fights breaking out over food and overcrowding as the population at Manston climbed towards 4,000 people in October.

The first detailed testimony of the conditions described by the guards include: Thousands of people sleeping on mats on the floor inside a makeshift marquee while being held for indefinite periods with nothing to do: Incidents of detainees being pinned to the ground and beaten after hitting their heads against a wall: Migrants being forcibly restrained after asking for food: A man injured in a fight receiving “unacceptable” medical care because it was assumed he was “faking it”

The revelations come as the immigration system remains at breaking point, with more than 45,000 asylum seekers living in hotels and a record backlog of over 140,000 undecided claims.

Read more: Lizzie Dearden, Independent, https://rb.gy/69hlg9

Black Women ‘Disproportionately’ Detained Under the Mental Health Act

Black women are more likely than people from any white background to be detained under the Mental Health Act (MHA). Black people are four times as likely to be detained under the MHA and over 11 times more likely to be given a Community Treatment Order (CTO). Meanwhile, a previous investigation by EachOther and openDemocracy revealed that women are disproportionally detained under the Act.

A CTO is made by a clinician to give supervised treatment in the community. This means people can be treated in the community for mental health problem, instead of going to hospital. A CTO lasts for six months from the date of the order. But it can be renewed.

Some minorities are also more likely to spend longer in detention, experience multiple detentions, and be detained through contact with emergency departments or the criminal justice system.

Calls have been made to scrap most CTOs due to them being too restrictive and their disproportionate use. Mind, a mental health charity, also backed the Joint Committee on the Draft Mental Health Bill’s proposal to monitor CTOs but said it would “carry on pushing for this to also apply for the criminal justice system”.

Inequalities have not been addressed since 2018

Read more: Emma Guy, Each Other, https://rb.gy/ecyz8o

Defendants of Colour More Likely to be Charged Than White People

Black and minority ethnic defendants are significantly more likely to be charged for a comparable offence than white British defendants in England and Wales, a study commissioned by the Crown Prosecution Service (CPS) has found. The findings, described as “troubling” by the CPS and experts, show that defendants from mixed ethnic backgrounds are most likely to be charged, with 79.1% of the suspects charged, almost 10 percentage points higher than the rate of white British defendants charged. Black defendants had a charge rate of 76.2%, which was seven percentage points higher than the rate of white British defendants; while 73.1% of Asian defendants were charged, 3.5 percentage points above the white British rate.

The three highest charge rates were among mixed ethnicites. When ethnicity was isolated as a variable, the researchers found that white and black Caribbean defendants were most likely to be charged, with a rate of 81.3%, a near 12 percentage point difference from white British defendants. White and African defendants had the second highest rate of charges and white and Asian defendants had the third highest, with a charge rate of 79.5% and 78.4% respectively. White British suspects had the lowest charge rate compared with all other ethnicities with 69.9% of cases resulting in a charge.

Read more: Aamna Mohdin and Carmen Aguilar García, https://rb.gy/2xbgej

Permission to Appeal Granted in Judicial Review of Plan to Send Asylum Seekers to Rwanda

Asylum Aid, a charity providing legal representation to people seeking protection from persecution in the UK, argues that the procedure adopted for sending individuals to Rwanda is inherently unfair because it gives asylum seekers, newly arrived and in detention, just 7 days to understand that they were being considered for removal to Rwanda, to obtain legal representation, and to make their case as to why they should not be sent to Rwanda. It is argued that this short timeframe does not provide sufficient time for individuals to make their case, particularly when they then have as little as 5 working days after the decision to get to Court before they could end up on a plane.

Asylum Aid is appealing to the Court of Appeal on the basis that, inter alia, the Divisional Court was wrong and common law procedural fairness does require that individuals have the opportunity to make representations on all relevant matters and access to the SSHD’s provisional conclusions against them, that fairness does require access to lawyers to make representations, and therefore that the timeframes are too short.

Source: Michelle Knorr and Sarah Dobbie, Doughty Street Chambers, https://rb.gy/xk7ne9

Atrocities by Rwanda-Backed M23 Rebels

The ruling Rwandan Patriotic Front (RPF) continues to target those perceived as a threat to the government. Several high-profile critics have been arrested or threatened and authorities regularly fail to conduct credible investigations into cases of enforced disappearances and suspicious deaths of government opponents. Arbitrary detention, ill-treatment, and torture in official and unofficial detention facilities is commonplace, and fair trial standards are routinely flouted in many sensitive political cases, in which security-related charges are often used to prosecute prominent government critics. Arbitrary detention and mistreatment of street children, sex workers and petty vendors occurs widely.

Continuing Conflicts That Create Refugees - February 2023

Deteriorated Situations
India-Pakistan (Kashmir), Pakistan, Democratic Republic of Congo, Rwanda, Cameroon , Israel/Palestine, Brazil, Peru

Conflict Risk Alerts - Central African Republic

Resolution Opportunities - None

Hundreds of Sudan-based rebels entered the Central African Republic, fuelling fears of large-scale fighting and regional destabilisation.

A Canadian peace initiative to end the brutal conflict between Cameroon’s government and several Anglophone separatist groups suffered setbacks as Yaoundé denied giving any country a mandate to facilitate negotiations.

Already high tensions between Rwanda and DR Congo ratcheted up after the Rwandan military shot at a Congolese fighter jet they say violated Rwandan airspace.

In Pakistan, a suicide bombing claimed by the Pakistani Taliban killed scores in Peshawar city, as the group continued high-frequency attacks in Khyber Pakhtunkhwa province.

Days after Luiz Inácio “Lula” da Silva’s inauguration as Brazil’s president, supporters of former President Jair Bolsonaro stormed government buildings in the country’s capital, demanding a military coup to reinstate him to power.

Deadly violence escalated in Israel-Palestine as Israeli forces killed dozens of Palestinians in the West Bank and a Palestinian shooter killed seven Israelis in Jerusalem.

Internatinal Crisis Group, https://www.crisisgroup.org/crisiswatch

Judge Orders Home Office to Provide Accomodation Pending Judicial Review

Rawle Ganpot, Paul Dickson, and Fayrose Dickson. Rawle and Fayrose are partners, and Paul is their son. They seek interim relief from the Defendant, the Secretary of State for the Home Department, in the form of a mandatory order requiring the Defendant to provide them with accommodation pending the final hearing of their application for judicial review.

The Claimants were then accommodated by Luton Borough Council in temporary licenced accommodation for a weekly charge of £193.33. The Claimants were not in a position to make the rental payments and arrears of around £10,000 built up. On 11 January 2023, Luton Borough Council informed the Claimants that they would be evicted from their property on 30 January 2023.

The Claimants have stated that they do not have any income, other than a small State pension for Fayrose. They have lived on charitable donations: including the use of soup kitchens and food banks and support from members of the local community. Rawle is 73 years old, and suffers from hypertension, diabetes and chronic stage 3 kidney disease. Paul is 49 years old, and suffers from diabetes and asthma, and may have some learning difficulties. Fayrose is 69 years old and suffers from diabetes.

On 6 January 2023, Rawle applied to the Defendant for accommodation and support, using the Defendant's "BAIL 409" form. The form is headed "Application for Immigration Bail Accommodation (Exceptional Circumstances including Article 3 ECHR)". Paul applied on 10 January 2023. Their applications were refused on 13 and 17 January 2023 respectively. On 18 January 2023, Fayrose made her application for accommodation and support. Shortly afterwards, Rawle and Paul issued judicial review proceedings against the Defendant, and applied for interim relief.

The Home Office reconsidered the applications for immigration bail and accommodation brought by Rawle and Paul, and has considered (for the first time) the application brought by Fayrose. The decisions are stated in identical terms. The applications have been refused. The Home Office has stated that: "Having carefully considered your application on Form Bail 409, I am not satisfied that you meet the criteria set under paragraph 9 of Schedule 10 of the Immigration Act 2016. To be eligible to receive support under Schedule 10 you must demonstrate you have been granted Immigration Bail, are destitute and refusal of support would breach your human rights. Although your destitution has been accepted, your application has been refused for the following reasons: You have not been granted Immigration Bail.

It is considered that you have the ability to return to your country of origin, or any other country of willing to accept you as a national. It is not considered that there are any barriers to you voluntarily returning to Grenada. The embassy has the power to issue travel documents for individuals who wish to return to Grenada. There is no record of you submitting an application for either the Voluntary Returns Service or the Facilitated Return Scheme. It is therefore not considered that you are taking reasonable steps to leave the UK.

You have submitted no medical evidence that you are unable to leave the UK at the present time It is not the opinion of the Secretary of State that there is no viable route to Grenada. In addition to the above, On the information available it is not considered that you have an outstanding asylum claim, nor are you a Failed Asylum Seeker. It is therefore not considered that there are any legal or practical obstacles to you returning to your country of origin. As such, the denial of support does not constitute a breach of your human rights”.

Grant of Interim Relief
The test on an application for interim relief is that set out in American Cyanamid v. Ethicon Ltd. [1975] AC 396 -- is there a serious question to be tried and, if so, where does the balance of convenience lie -- modified for public law cases.

Where an application is made for mandatory relief, there is some dispute in the authorities as to whether the applicant must show that they have a strongly arguable case, or whether the strength of the case goes merely to the balance of convenience. I do not need to decide that question in this case.

I consider that there is plainly a serious issue to be tried. If the "strongly arguable" test applies as a threshold question where mandatory relief is sought then that threshold has been met. If it is not a threshold question, then the strength of the Claimant's case weighs heavily in their favour when considering the balance of convenience.

As for the balance of convenience more generally, I appreciate that making the mandatory order will put the Defendant to some expense and extra administrative burden, and that this is not immaterial. Nevertheless, I consider that this inconvenience or burden to the Defendant is easily outweighed by the prejudice or harm to the Claimants if they are required to make the choice of (1) or (2).

It seems to me, therefore, that a grant of the mandatory order is clearly called for and that the inconvenience or burden to the Defendant can be minimised by expediting the hearing of the Claimants' judicial review.

Conclusion: I have ordered the Defendant to make accommodation available to the Claimants pending the final hearing of their judicial review; and have ordered expedition of that hearing.

Read the full transcript: 
https://www.bailii.org/ew/cases/EWHC/Admin/2023/197.html

Deporting Foreign National Offenders at Conclusion of Their Custodial Sentences

Our priority will always be to keep the British public safe. That is why foreign nationals who abuse our hospitality by committing crimes should be in no doubt of our determination to deport them and more than 12,200 have been removed since January 2019. We make every effort to ensure that a foreign national offender’s removal by deportation coincides, as far as possible, with their release from prison on completion of sentence, however we can face significant and complex challenges when seeking to deport them to their country of origin. That is why the Nationality and Borders Act makes provisions to streamline the appeals process by introducing an expanded one stop process aimed at reducing the extent to which people can frustrate removals through sequential or unmeritorious claims, appeals or legal action. The Act makes it easier and quicker to remove FNOs and those with no right to be in the UK, it extends the period an FNO can be removed from prison under the early removal scheme (ERS) from a maximum of 9 months to 12 months, providing the minimum requisite period has been served We?remain resolute in our commitment to deport those who would abuse our hospitality. Lord Murray of Blidworth

They Work For You, https://rb.gy/8cxxez