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

News & Views Monday 13th July to Sunday 19th July 2020

High Court Grants Permission to the Challenge SSHD’s Policy on Release Of Detainees From IRCs

This challenge is to the SSHD’s policy: Detention Services Order 08/2016 “Management of Adults at risk in detention” which operates in principle and in practice, as an inadequate safeguard contrary to the purpose of the Adults at Risk policy and section 59 of the Immigration Act 2016. It gives rise to unacceptable risks of breaches of fundamental rights under Articles 3 and/or 8 ECHR on releasing detainees from detention. Within this judicial review we also challenge the SSHD’s failure to have regard to her duties under s149 and s20/29 of the Equality Act in respect of the system for release and bail.

In summary, the Claimant’s grounds of review are: Ground 1: Failure to have regard to duties under s149 and s20/29 of the Equality Act 2010 in respect of the system for release and bail; Ground 2: The DSO 08/2016 operates in principle and in practice, as an inadequate safeguard contrary to the purpose of Adults at Risk and section 59 of the Immigration Act 2016 and gives rise to unacceptable risks of breaches of fundamental rights under Articles 3 and/or 8 ECHR; Ground 3: Breach of policy in the Claimant’s particular case – failure to adhere to DSO 08/2016 on the facts of this case; Ground 4: Unlawful imposition of bail.

Read more: Duncal Lewis, https://is.gd/8pxnlU

Call for Evidence: an Inspection of Asylum Casework

David Bolt, Independent Chief Inspector of Borders and Immigration, invites anyone with knowledge and experience of the Home Office’s Asylum Casework to submit evidence for his next inspection. In my 2020-21 Inspection Plan, I indicated that I would be carrying out a further inspection of ‘Asylum Casework’. Work on this has now begun and I am inviting anyone with relevant knowledge and experience to write to me with their evidence and views of how the system is working.

In my previous report “An inspection of asylum intake and casework” published in November 2017, I examined the asylum process from registration of a claim through to the initial decision, including the timeliness and quality of decisions. I also looked at the progress made by the Home Office in implementing the recommendations from my 2015 inspection of Asylum Casework and the 2016 inspection of ‘lorry drops’. In 2017, I also reported on how the Home Office ensured that the ‘best interests’ of unaccompanied asylum-seeking children were considered.

For this latest inspection, I would be particularly interested to hear from those with first-hand experience of the asylum process regarding:

Read more: David Bolt, ICIBI, https://is.gd/Dj1wfi

Home Office Complaints Handling Targets “Routinely Missed”

Targets for handling complaints within 20 working days are “routinely missed”, according to a report published today by the immigration inspector, David Bolt. Mr Bolt also says that the department has failed to keep up improvements in this area made between 2015 and 2017 and needs to go back to square one. The inspection was actually carried out between February and May 2019, and the report sent to the Home Office on 4 July 2019. The department’s permission to publish it has been withheld until now, meaning that the report’s findings are now a full year old. Many of the problems that it identifies are older still.

The inspector “identified a number of process improvements” in a 2015 report on complaints handling, while a 2017 re-inspection reckoned there was “a good deal more work to do”. This third inspection finds that things have actually gone backwards: the earlier process improvements had not led to a sustained improvement in performance. Consequently, each area now need[s] to revisit the original recommendations, take stock, and determine how it [i]s going to raise and sustain its performance. In particular, the report found that the various teams which process complaints about particular Home Office functions need to get the finger out (sorry, “improve the timeliness and quality of its responses”).

The target is for 95% of all complaints to be dealt with within 20 working days. Detention Services, Immigration Enforcement and UK Visas and Immigration did not meet that target for 18 months over 2017 and 2018. Border Force “had never met it” and doesn’t bother trying, “believing that the service standard was unachievable”. The Border Force complaints team reported being seen as “the baddies” by their colleagues on the ground.

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

Home Office Ordered to Pay Over £100,000 Compensation For False Immigration Detention

The County Court has determined that the Home Office must pay our client £106,840 in compensation for a period of false imprisonment amounting to 13 months and two weeks which equates to 410 days. In the court’s previous judgment in January 2020, the court determined the following:

The initial three months that the Claimant spent in immigration detention were lawful, however when approved premises became available on 19 July 2017, the Claimant should have been released and from this date until his release on 3 September 2018, the Claimant’s detention was unlawful under Hardial Singh ground (ii).

The Claimant’s detention was also unlawful for an additional two month period within the above time period because it was apparent that the Claimant could be deported within a reasonable period (Hardial Singh ground (iii)). During this particular timeframe, Her Majesty’s Coroner had asked the Home Office not to deport the Claimant on the basis that he could be an important witness to the death of his friend in Brook House IRC.

While in immigration detention, the Claimant suffered from moderately severe PTSD. His detention was the cause or the main cause of this condition. He also underwent a moderate depressive episode while in immigration detention. This was also caused by his immigration detention.

Read more: Duncan Lewis, https://is.gd/5c18Ek

Judge Orders Home Office to Bring Asylum Seeker Back to the UK

The President of the Upper Tribunal, Mr Justice Lane, has ordered the Home Office to pay for and facilitate the return to the UK of a man who was removed to Nigeria in March 2018. The case involved a mix of unfortunate administrative errors, inexplicable and erroneous representations by the Home Office, and an unlawful removal. In his determination, Lane J placed significant weight on the Home Office’s “deliberate or reckless law-breaking”. The applicant, L, had made a fresh asylum claim on the basis of sexuality and religious conversion in January 2016, which the Home Office refused in April 2017. The department did accept that the claim had not already been considered and that, notwithstanding its rejection, it had a “realistic prospect of success” on appeal to the First-tier Tribunal. In November 2017, L informed the tribunal that he had changed his address. He had previously told the Home Office to ensure compliance with his immigration bail conditions. Unfortunately, tribunal officials sent the notice of his appeal hearing to L’s old address.

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

EDM 722: Government Support for Asylum Seekers

That this House is concerned about the current provisions provided by the Home Office to support those seeking asylum throughout the pandemic; asks the Government to review the current claiming system and modify it to allow for an asylum claim to be made remotely; demands that the financial support provided by the Government is increased by at least £20 per week to reflect the emergency changes made to the standard rate of universal credit and the increasing prices for essential goods; calls on the Government to review the current accommodation provided to asylum seekers to ensure that all accommodation allows for social distancing and self-isolation to align with the guidance given by the Department for Health and Social Care; and further calls on the Government to provide sufficient cleaning and personal hygiene supplies to prevent the spread of the virus in any shared accommodation.

Parliament, Tabled 14 July 2020, https://is.gd/9VjUEq

What are the Hardial Singh Principles?

This post explains the Hardial Singh principles, which are the most important limitation on the Home Office’s immigration detention powers. The Hardial Singh principles take their name from the case of R (Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), an early immigration detention case. Lord Woolf (then just a High Court judge, later Lord Chief Justice) decided that the power to detain migrants under the Immigration Act 1971 is subject to limitations imposed by the common law.

Since then they have been approved on numerous occasions by the House of Lords/Supreme Court The authoritative formulation of the Hardial Singh principles is found in Lumba [2011] UKSC 12: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.
These principles can be used in both public and private law. They are applied in both judicial reviews applications challenging the lawfulness of detention, and in false imprisonment claims.

Read more: Freemovement, https://is.gd/4OB52J

Asylum, Sexuality and Concealment: Where are we a Decade on From HJ (Iran)?

On 7 July 2010, the Supreme Court handed down its landmark decision in (Iran) [2010] UKSC 31, in which it established how asylum applications are to be decided when applicants flee persecution on the basis of their sexual orientation. The ruling effectively ended the wrongful expectation that applicants remain in the closet if that was “reasonably tolerable” to them in order to avoid persecution on return to their home countries. The impact of HJ (Iran): Over the subsequent decade, the UK Lesbian and Gay Immigration Group (UKLGIG) has published two research reports on decision-making in asylum applications based on sexual orientation, gender identity or gender expression.

In September 2013, Missing the Mark found that HJ (Iran) had had a positive effect on the quality of decision-making by the Home Office. However, applicants were increasingly refused protection because they were disbelieved about their sexual orientation under the first of the four limbs of the test set by the Supreme Court. The report also found that the test was still not being applied properly by decision-makers, especially in respect of countries with a long history of homophobia, where internal relocation was deemed a valid option. Still Falling Short came out in July 2018, two years after the Home Office revised its asylum policy on sexual orientation (version 6.0). The report noted several instances of applications continuing to fail on the grounds of adverse credibility. It also highlighted refusals that failed to correctly follow the Supreme Court’s guidance — particularly on fear of persecution being a material reason for someone choosing to be “discreet” about their sexuality (the fourth stage of the test).

Read more: Freemovement, https://is.gd/m4VhM0

Home Office Removal Window Makes Access to Justice ‘Practically Impossible’

A legal challenge to the Home Office’s draconian immigration removal policy under which detainees can receive just 72 hours’ notice will be heard today in the Court of Appeal. In an earlier hearing, the Home Office revealed that between 2015 and 2018 it carried out over 40,000 enforced returns and most were served with a ‘removal notice window’ giving between three and seven days’ notice that they will be removed at any time over a three month period. The challenge is brought by Medical Justice represented by Public Law Project, and ‘FB’, an individual who faced removal under the policy who is represented by Duncan Lewis Solicitors.Lawyers for Medical Justice argues that the policy is in breach of the European Convention on Human Rights and the Dublin III regulations preventing those being removed from having a fair chance to put their case forward and has led to ‘tens of thousands’ of deportations . ‘This case is about access to justice,’ commented Rakesh Singh, solicitor at Public Law Project. ‘Under this policy, the notice period can be so short that it is impossible for the individual to exercise their legal right to challenge a removal decision.’ To successfully challenge a removal, an individual would need to find and instruct an immigration lawyer, make representations to the Home Office, challenge a refusal and then obtain an injunction to prevent removal if necessary.