News & Views Monday 20th January to Sunday 26th January 2020

News & Views Monday 7th September to Sunday 13th September 2020

Why We Need to Rethink the Way We Use ‘BAME’

Use of the acronym BAME – which stands for black, Asian and minority ethnicity – has skyrocketed with the onset of the pandemic and the resurgent Black Lives Matter movement. But what began partly as a category to help identify racial discrimination is now being used to hide it, writes Susu Hagos. BAME is the umbrella term often used by politicians and the media to refer to the 14% of the UK population which does not identify as “white”. As a black woman, I feel as though it’s a term used to talk more about us, rather than a term I identify with as an individual. It is clearly important to recognise how people from minority ethnicities in the UK are often seen and treated differently and face unique obstacles. This is where the term BAME has a place – it’s an acknowledgement of discrimination, prejudice and a way to ensure there is representation and diversity reflective of society in workplaces and institutions. It has a specific function on those limited occasions when it’s appropriate to talk about all minority ethnic groups in general.

But it is too often used to lump us all together as one seemingly homogenous group, hiding the unique obstacles different communities face. A recent YouGov poll exploring BAME experiences in Britain revealed that 74% of respondents had been asked where they were “really from”, whilst 65% have had a racial slur said directly to them. There is clearly a widely shared experience of racism among people from minority ethnic backgrounds, yet disparities in other factors of life vary greatly. Not only are Black Caribbean pupils three times more likely to be excluded from school than other pupils – they’re also twice as likely to be excluded than their Black African counterparts.

Home Office Confirms Channel Boat People Are Refugees

Migrants crossing the English Channel in small boats are overwhelmingly genuine refugees, senior Home Office officials have confirmed. Evidence presented to the Home Affairs committee of MPs on 3 September makes clear that the majority of those making the perilous crossing are either being granted refugee status straight away or come from countries for which the success rate in asylum applications is extremely high. Figures on small boat crossings are not routinely published, but the Home Office keeps tabs. Senior official Abi Tierney told the committee that 5,000 people have crossed the Channel in small boats so far this year. Of those, 98% have claimed asylum. The Home Office has issued an initial decision on around half of those asylum claims so far.

The breakdown of those roughly 2,500 decisions is as follows: 20% of those have been granted, 10% have been refused and a further 71% have been refused because we are not the responsible country, i.e., they have travelled through a safe country before they came here. Tierney’s colleague Tyson Hepple, head of Immigration Enforcement, later clarified that the 71% are not being refused in the sense that the Home Office thinks they are not genuine refugees. The department just believes that another European country has the legal responsibility for deciding whether they should be granted asylum or not: The people Abi was referring to are those we are trying to transfer to another European state under the Dublin regulations, so they will not have their protection claim heard in the UK. We are seeking to transfer them to another European state in order to have their asylum claim heard there, because they claimed asylum in that country on their way to the UK.

Read more: Freemovement, https://is.gd/MEHDnG

MPs Accused Ministers of ‘Demonising’ Asylum Seekers And ‘Stoking’ Racial Tensions

MPs accused the ministers of ‘demonising’ asylum seekers, ‘stoking’ racial tensions and using ‘Trumpian’ language. In a debate about migrants crossing the channel on Wednesday 3rd September, the government was criticised for its approach to migrants fleeing conflict five years after the death of the Syrian toddler Alan Kurdi on a Turkish beach.

Boris Johnson expressed sympathy for those ‘so desperate as to put their children in dinghies‘ but went on to condemn the act as criminal and ‘undermining the legitimate claims of others who would seek asylum in this country’. ‘That is why we will take advantage of leaving the EU by changing the Dublin regulations on returns and we will address the rigidities in our laws that make this country, I’m afraid, a target and a magnet for those who would exploit vulnerable people in this way,’ the prime minister said.

Johnson was speaking prior to an urgent question on small boat crossings from the shadow home secretary, Nick Thomas-Symonds. Immigration minister Chris Philp told MPs that there was ‘a completely unacceptable increase’ in illegal migration through such crossings from France to the UK and said that the government was ‘working relentlessly’ to stop migrants making the journey. He pointed out that 24 people had been convicted and jailed for facilitating illegal immigration. Philip also said that France was a safe country and that ‘genuine asylum seekers’ should be claiming asylum in the first safe country they reach.

Continuing Conflicts That Create Refugees - September 2020

Deteriorated Situations: Mali, Mozambique, Côte d’Ivoire, Belarus, Bolivia, Colombia, Lebanon

Conflict Risk Alerts: Côte d’Ivoire, Guinea, Ukraine, Iran

Resolution Opportunities: None

The latest edition of Crisis Group’s monthly conflict tracker highlights deteriorations in August in seven countries – the majority of them in Africa and Latin America – as well as improved situations in Sudan, Ukraine and Guyana. In Mali, a military coup forced President Keïta to resign after months of mass protests. The transition ushers in a period of uncertainty, with military leaders advancing a three-year timeline to return to civilian rule. In Colombia, the COVID-19 pandemic contributed to a dramatic rise in violence as armed groups, which seek to exploit the health crisis to extend control over territories and attract new recruits, launched a series of attacks against civilians, leaving dozens dead. A massive explosion in Lebanon’s capital Beirut, which killed at least 190 people, fuelled violent anti-government protests and prompted Prime Minister Diab’s government to resign.

September, CrisisWatch warns of four conflict risks: Côte d’Ivoire and Guinea could face major pre-electoral violence as both countries head to the polls in October. With announcements in August that both President Ouattara and President Condé will likely run for a controversial third term, tensions are running high. In Eastern Ukraine, while the Donbas ceasefire largely held in August, Donetsk’s de facto leadership threatened a new escalation. Meanwhile, U.S. pressure to reimpose all pre-nuclear deal sanctions on Iran by 20 September risks significantly escalating tensions.

EU Settlement Scheme Rejects Majority of Zambrano Carers

The Home Office has so far rejected the majority of EU Settlement Scheme applications that rely on Zambrano rights. New figures show that 770 of the 1,260 Zambrano carers applying for leave to remain under the scheme have been rejected (61%). A non-EU citizen who is the primary carer of a British citizen may have a right to reside in the UK under EU law, relying on the judgment in case C-34/09 Zambrano. As Luke Piper of campaign group the3million puts it, Zambrano carers are “usually single mothers with small British children fleeing domestic violence”, often poor and vulnerable.

Zambrano carers did not have a route to settlement in the UK before the EU Settlement Scheme, so immigration lawyers initially welcomed the fact that they were able to use it. But the Home Office insists that potential Zambrano carers must have made an attempt to stay in the UK through the domestic immigration system first, before relying on EU law rights. As we said in our Settled Status Handbook, that “has the potential to shut out many carers from the Settlement Scheme”. The new figures also confirm anecdotal reports of a backlog in specialised applications. Since August 2018 there have been 7,200 applications invoking Zambrano, Surinder Singh, Lounes, Chen and Ibrahim/Teixeira, all of which involve a paper application form rather than the normal online process. Only 2,900 had received a decision by the end of June 2020.

Read more: Freemovement, https://is.gd/V0kDOr

N. Ireland: Executive Office Ordered to Pay Pension Court Costs

The Executive Office has been ordered to pay costs incurred by a legal challenge against the delays in introducing a Troubles pension scheme. Last week, the High Court ruled the Office had acted unlawfully. The scheme was approved by Westminster in January, but its administration had been delayed by a row over the definition of a victim. Mr Justice McAlinden said his ruling on who should pay court costs was "appropriate in the circumstances". The scheme is designed to make regular payments to people who were seriously injured in the Troubles.

Prior to the rulings, deputy First Minister Michelle O'Neill had refused to designate a department to administer the scheme. She said there were concerns that some republicans with convictions from the Troubles could be excluded from its criteria. This delay prompted two victims, Jennifer McNern and Brian Turley, to take the Office to court. On Monday, the department of justice was designated to take on the scheme, with Justice Minister Naomi Long warning the payments could total up to £800m. She told BBC News NI it was not yet clear where the funding would come from, but said it was clear in her mind "where it should come from".

At the court hearing on Friday, it was noted that a department had now been designated and no further orders were required about the funding of the scheme. Mr Justice McAlinden said any issue to do with funding "from here on in" would require a fresh application to the court. He added that "bearing in mind the demands on funds" facing Stormont departments, he did not believe it was for the court "to delve further into those issues and to direct further in relation to specific funding".

Source: BBC News, https://is.gd/mIWdQe

Access Denied: The Human Impact of the Hostile Environment

Over the past decade, the government has rolled out a series of measures aimed at creating a ‘hostile environment’ for people living in the UK without immigration status. This approach to immigration enforcement – intended to force people without immigration status to leave the UK without the direct involvement of immigration officials – involves making it harder for individuals to take up employment, rent property, open bank accounts, get driving licences, and access welfare and public services. The government has required these new measures to be policed by employers, landlords, and frontline workers. Many professionals are now expected to implement immigration checks and charges and to share information on individuals’ immigration status with the Home Office.

In this report, we assess the impacts of the hostile environment on individuals and communities. The report draws on new analysis of government data and interviews with a range of stakeholders, including people with direct experience of the hostile environment, charities and NGOs, immigration lawyers, and former government officials. We find that the hostile environment has contributed to forcing many people into destitution, has helped to foster racism and discrimination, and has erroneously affected people with the legal right to live and work in the UK. In particular, we find that:

Read more: https://is.gd/wz6Ao7

Particular Social Group Mental Health - Supremacy of Refugee Convention 1951 Over EU law

The outcome of this case affirms the supremacy of the Refugee Convention 1951 over EU law by reference to the Convention’s object and purpose. It recognises for the first time in UK asylum law that a “person living with disability or mental ill-health” may qualify as a member of a particular social group (PSG); and it clarifies the correct legal approach, overturning previous unhelpful tribunal authority, approving obiter comments of the House of Lords as well as affirming the UN Refugee Agency guidelines making it easier to establish a PSG in all cases.
The appellant is a citizen of Afghanistan who appealed the decision of the Secretary of State dated 30 August 2017 to refuse his human rights claim, and a further decision of 26 February 2018 refusing his protection claim and a further human rights claim. Following the appellant’s 12 week imprisonment in 2017 as a result of him committing an act outraging public decency and exposure, it was decided by the Magistrates’ Court that the appellant had met the criteria for deportation on conducive grounds.
A judge of the First-tier Tribunal (FtT) dismissed the appellant’s appeal on refugee grounds, but allowed it on human rights grounds (Article 3 ECHR). He concluded that the manifestation of the appellant’s mental illness created a strong likelihood of sexually disinhibited behaviour in Afghanistan that would lead to serious harm at the hands of state and non-state agents. The Secretary of State did not challenge that finding but the appellant appealed on refugee grounds.

An error of law was found in the decision of the FtT. The issue identified in this matter was as follows. This appeal raises a single issue which is did the Judge materially err in law by failing to determine whether A is at real risk of serious harm for a refugee Convention reason? This in turn raises an issue of principle. If a person is subject to prohibited treatment due to their mental ill-health, are they being persecuted by reason of their membership of a particular social group (PSG)?

Read more: Duncan Lewis, https://is.gd/Ckee40

MPs Accused Ministers of ‘Demonising’ Asylum Seekers And ‘Stoking’ Racial Tensions

Particular Social Group Mental Health - Supremacy of Refugee Convention 1951 Over EU law

The outcome of this case affirms the supremacy of the Refugee Convention 1951 over EU law by reference to the Convention’s object and purpose. It recognises for the first time in UK asylum law that a “person living with disability or mental ill-health” may qualify as a member of a particular social group (PSG); and it clarifies the correct legal approach, overturning previous unhelpful tribunal authority, approving obiter comments of the House of Lords as well as affirming the UN Refugee Agency guidelines making it easier to establish a PSG in all cases.

The appellant is a citizen of Afghanistan who appealed the decision of the Secretary of State dated 30 August 2017 to refuse his human rights claim, and a further decision of 26 February 2018 refusing his protection claim and a further human rights claim. Following the appellant’s 12 week imprisonment in 2017 as a result of him committing an act outraging public decency and exposure, it was decided by the Magistrates’ Court that the appellant had met the criteria for deportation on conducive grounds.

A judge of the First-tier Tribunal (FtT) dismissed the appellant’s appeal on refugee grounds, but allowed it on human rights grounds (Article 3 ECHR). He concluded that the manifestation of the appellant’s mental illness created a strong likelihood of sexually disinhibited behaviour in Afghanistan that would lead to serious harm at the hands of state and non-state agents. The Secretary of State did not challenge that finding but the appellant appealed on refugee grounds.

Bail Accommodation System Ruled “Systemically Unfair”

The Immigration Act 2016 brought about extensive changes to the support available to people on immigration bail. Since those changes came into force in January 2018, tens of thousands of people have struggled against the harsh new system, which has kept many indefinitely detained by the Home Office or has left them homeless with no support.

It is a relief, then, that the High Court in Humnyntskyi v SSHD [2020] EWHC 1912 Admin has put the brakes on the new system, finding that it “does not come close” to a minimum standard of fairness. In a lengthy judgment, Mr Justice Johnson considered three joined judicial reviews alleging unlawful detention and, in one case, inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). After finding in the claimants’ favour in their individual claims, the judge concluded that the system “by some margin” created a risk of unfairness for all those who may be eligible for support under Schedule 10 of the 2016 Act. As the charity Bail for Immigration Detainees (BID) puts it, “this judgment has found the Home Office’s bail accommodation policies and its practices to be individually and systemically unlawful”. Although the court handed down its decision at the end of July, we have only in the last few days had confirmation that the Home Office has decided not to appeal.