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

News & Views Monday 24th August to Sunday 30th August 2020

Asylum-Seeker Deportation Flight Halted by Legal Challenge

A plane due to remove asylum-seekers from the UK has been cancelled after legal challenges. The Home Office said the charter flight was "paused" to allow time for the applications to be considered. On Wednesday, 12 migrants were returned to France and Germany by plane. Asylum-seekers at a detention centre near Gatwick Airport are on hunger strike in protest at the proposed flights and some are reported to have tried to take their own lives.

In a Twitter post, the Home Office had earlier claimed that EU regulations that determine where an asylum claim is heard were being used by "activist lawyers" to delay and disrupt returns flights. Simon Davis, president of the Law Society of England and Wales, said it was "highly misleading and dangerous" for the Home Office to claim "fundamentally that lawyers are not to be trusted. Attacks on the integrity of the legal profession undermine the rule of law," he said. Charity Detention Action said 22 asylum-seekers at Brook House, near Gatwick Airport, were on hunger strike, while eight had tried to take their own lives.

The Home Office said it was "right that we seek to remove migrants who have travelled through a safe country and have no right to remain in the UK". Attempts to return migrants to EU countries were often "frustrated" by last-minute legal challenges, which it said were "very often baseless and entirely without merit, but are given full legal consideration, leading to removal being rescheduled," it added. Twenty-seven people - from Afghanistan, Iran, Iraq, Kuwait, Sudan, Syria and Yemen - have been flown back to European countries this month. The majority had arrived in the UK on small boats. On Thursday morning, 26 migrants from Sudan crossed the Channel in three dinghies. More than 5,000 people have reached the UK in this way this year.

Source BBC News, https://is.gd/HCrK33

Decision Not to Allow Somalian Man to Make Fresh Asylum Application Quashed

The High Court in Belfast has quashed the Home Secretary's decision not to allow a Somalian man to make a fresh asylum application nearly 15 years after absconding during the asylum process. Omaar Ismail fled from Somalia in 2002 and claimed asylum in the UK shortly after arriving in London in early 2003. After absconding in the aftermath of his screening interview, his claim was refused and the appeal subsequently filed by his lawyers was dismissed without hearing. He remained in the UK and moved to Belfast in 2017 because he had a friend who lived there. Mr Ismail "kept my head in the sand about my irregular immigration status throughout all of these years", he said in an affidavit. In autumn 2017, he approached a solicitor in Belfast to help him make a fresh asylum application and subsequently availed of the "further submissions" process under paragraph 353 of the Immigration Rules.

Mr Justice Adrian Colton, delivering the judgment for the High Court, said it was "clear that a fundamental aspect of the applicant's submission is that he has no nuclear family in Mogadishu", an assertion which was rejected by the decision-maker. "I recognise that the decision was not made solely on the basis of the absence of a nuclear family in Mogadishu but that consideration was clearly central to the decision," the judge said. "I cannot therefore accept that in respect of the evaluation of the facts in his consideration the Secretary of State has satisfied the requirement of anxious scrutiny." The judge considered that the appropriate remedy is an order of certiorari quashing the impugned decision of the Home Secretary. The matter should be referred back for reconsideration by a different decision-maker and remaking of the decision, he said.

Covid-19 - Right To Work Checks

As a result of the ongoing COVID-19 pandemic, Right to Work Checks were temporarily adjusted as of 20 March 2020 to make them easier for employers to continue to carry them out.

What is a Right to Work Check? All employers in the UK have a responsibility to prevent illegal working. An employer would do this by conducting simple Right to Work Checks before they employ someone, to make sure the individual is not disqualified from carrying out the work in question by reason of their immigration status.

If an employer conducts the checks correctly, the employer will have a statutory excuse against liability for a civil penalty in the event that they are found to have employed someone who is prevented from carrying out the work in question because of their immigration status. This means that if the Home Office found that an employer had employed someone who did not have the right to do the work in question, but they had correctly conducted Right to Work Checks as required, they will not receive a civil penalty for that illegal worker.

Due to COVID-19, Right to Work Checks have been temporarily adjusted as follows:

Checks can be carried out over video calls;
Prospective and existing employees can send their scanned documents or a photo of their documents by email, rather than sending original versions; and
Employers can use the Employer Checking Service if the prospective or existing employee cannot provide any of the required documents.
In addition to the above, we recommend for completeness that a screenshot of the COVID-19 concession from the Government website is also kept on file.

Posted by: Gherson Immigration, https://is.gd/mG6DbI

Support System for Migrant Victims of Human Trafficking

“The English have a great reputation of taking over the world .. invading countries and then getting upset when those people follow them home." Tommy Tierman

When the Modern Slavery Act 2015 was introduced, it was heralded by the government as a momentous piece of legislation which would “give protection to the victims who need it”. The Act introduced a reformed system for identifying, supporting and protecting victims of modern slavery or human trafficking in England and Wales. But how does that system work in practice and has it lived up to the government’s high expectations?

Sections 1 and 2 of the Act distinguish between “slavery” and “trafficking”, which are separate criminal offences. The difference is more important for criminal lawyers dealing with prosecutions under the Act than it is for immigration lawyers trying to help victims. Immigration lawyers tend to talk about trafficking, as that is about movement of people, so we’ll use that term in this article. The most relevant sections of the Modern Slavery Act for an immigration practitioner are in Part 5, covering “Protection of Victims”. Section 52 places various public bodies, such as local councils and the police, under a “duty to notify” the Home Office when they encounter potential victims of trafficking. The Home Office system for processing such referrals, deciding whether someone is actually a victim and providing support is called the National Referral Mechanism (NRM).

Until recently, NRM decision-making functions were handled by a combination of UK Visas and Immigration, Immigration Enforcement and the National Crime Agency. That system is now being replaced with a ‘Single Competent Authority’ to combine decision-making into a single organisation. The Single Competent Authority came into being — on paper, at least — in April 2019. It is ultimately part of the Home Office, so sometimes we talk informally about decisions about trafficking victims being made “by the Home Office”.

Read more: Freemovement, https://is.gd/5NwV6C

Call For 'good Character' Requirement In Irish Citizenship Laws to be Clarified

Irish citizenship laws should be amended to clarify the requirement for applicants to be of "good character", a law lecturer has said. Bashir Otukoya, a lecturer at Griffith College Dublin (GCD), told the Dublin InQuirer that "good character" is poorly defined and open to interpretation. Mr Otukoya, who called for reform in an academic article written while a PhD law student at University College Dublin (UCD), said the vague requirement could lead to some applicants refraining from criticism of the immigration or citizenship systems. “You’re following all the rules, and you’re still having trouble in the system," he said. "And, you shouldn’t be afraid of speaking out. Speaking out against injustice is a key civic duty."

Irish Lega News, https://is.gd/2wqC5i

DH (Particular Social Group: Mental Health) Afghanistan

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.

How to Use the Slip Rule to Fix a Permission to Appeal Error

In the case of Ali (permission decisions: errors; slip rule) Pakistan [2020] UKUT 249 (IAC) the Upper Tribunal has held that there is a process for fixing massive cock-ups in an immigration judge’s decision on permission to appeal — so not just to correct errors in a substantive ruling — and told us what that process is. The headnote suffices: (1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 may each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal. In cases of obvious error, the Upper Tribunal Immigration and Asylum Chamber can, in general, be expected in future to proceed as follows. (2) Where the First-tier Tribunal permission judge has granted permission when the reasons make it evident they meant to refuse, an Upper Tribunal Judge, acting as a Judge of the First-tier Tribunal, will make the necessary correction under rule 31 of the FtTIAC Rules, as soon as the matter is identified, whether that is at case management stage, as a result of communication from a party, or otherwise. Although the matter can and should (as in the present case) be raised in a rule 24 response from the respondent, it is preferable for it to be addressed earlier, since a hearing may already have been arranged before that response is received.

(3) Where the First-tier Tribunal permission judge refuses permission, but clearly meant to grant it, any renewal of permission before the Upper Tribunal should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the Upper Tribunal of the mistake. (4) In the Upper Tribunal, where a judge grants permission when they clearly meant to refuse, the error is unlikely to be identified at a case management stage, if and insofar as that stage is undertaken by the same judge, immediately after their mistaken grant. This highlights the point, emphasised in Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC), that it is the responsibility of the permission judge, whether in the First-tier Tribunal or the Upper Tribunal, to make sure there is no contradiction between their decision and the reasons for it. Otherwise, the points made above in respect of the rule 24 response apply also in this situation.

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

Useful Briefing on Changes to Northern Ireland Family Immigration Rules

Changes to family visa rules for people from Northern Ireland come into force in a few days’ time, 24 August 2020. Una Boyd outlined the reforms and the background to them on Free Movement when they were announced. We’ve just stumbled across another resource that might be useful: a briefing from the Northern Ireland Human Rights Commission called EU Settlement Scheme extended to the people of NI: what does it mean for me?. It is written by nationality law expert (and Free Movement contributor) Alison Harvey.

As she points out: The time frame for applications from those in the UK is 24 August 2020 to 30 June 2021. Close family members can join you in the UK after 30 June 2021, but only if you were in the UK before 31 December 2020 and the relationship existed before that date, or a child was born or adopted after that date. Those exceptions aside, after 30 June 2021 the scheme closes. EEA nationals and all the people of Northern Ireland will again fall under the immigration rules that apply to British citizens, people settled in the UK and refugees. Carpe diem: seize the day. These temporary concessions do not address the underlying issue of people born in Northern Ireland having automatic British citizenship, to which some people with an Irish nationalist background object. Alison has produced separate analysis on the citizenship situation: A Legal Analysis of Incorporating Into UK Law the Birthright Commitment under the Belfast (Good Friday) Agreement 1998.

Read more: Freemovement, https://is.gd/B2ieiO

No Home Office Duty of Care to Migrants Hit By Delays Confirming Leave to Remain

The case of Advocate General for Scotland v Adiukwu [2020] CSIH 47 answers the question of whether the Home Office has a private law duty to grant a person discretionary leave to remain and issue them with a letter to allow them to take up employment once a tribunal has granted their appeal on human rights grounds. It doesn’t.

Ms Adiukwu, a Nigerian law student, won her human rights appeal in the Upper Tribunal in March 2015. The Home Office did not issue her with a status letter until November 2016. She took a civil action against the department, suing for £56,000 in lost earnings and benefit entitlements because officials had taken so long to implement the tribunal’s decision. The Home Office lost in the Sheriff Court, which found that the department did owe a duty to successful appellants to speedily grant them leave to remain. The problem, which only really became apparent once the case reached the Court of Session, was that the written pleadings did not fully explain the basis of the claim for damages. Defending the Sheriff Court’s findings, Ms Adiukwu’s lawyers argued that the Home Office had a duty to implement the tribunal’s decision within a reasonable time to allow her to take up work and access benefits for her and her children.

No liability for private damages despite public law duty: The Court of Session did accept that the Home Office had a duty to consider granting discretionary leave to remain under the policy in force at the time. That created a public law duty, but it did not translate into a duty of care that would allow Ms Adiukwu to sue for damages. The Home Office argued, and the court accepted, that even if officials could have exercised their powers to grant Ms Adiukwu leave to remain quickly to prevent her from suffering harm, that by itself was not enough to impose a responsibility in every single case.