Asylum Seeker Removal Flight Takes Off Despite Last-Minute Court Actions

A charter flight to remove asylum seekers who recently arrived in the UK on small boats took off on Wednesday morning carrying 14 people, the Home Office said, despite last-minute high court actions and other interventions just hours before takeoff. Nineteen people due to fly did not board the plane. The Home Office said 14 people were placed on the charter flight destined for France and Germany. The 19 who had their deportation stayed had been given an opportunity to make more detailed asylum representations in the UK. Their lawyers and NGOs working with detainees said they had not come across the 14 people whom the Home Office said had been removed. Due to social distancing rules only 20 people can currently be removed on a charter flight. Some of the 19 who did not fly had their removal directions deferred or stayed just hours before the flight took off, giving the Home Office only a short amount of time to substitute them for other asylum seekers who also arrived in the UK on small boats.

The Home Office argued that all had previously been in another European country – France or Germany – and should have their asylum claims dealt with there under a process known as the Dublin convention, under which an asylum claim is dealt with in the first safe European country an asylum seeker arrives in. The vulnerability of many of those threatened with removal to mainland Europe is stark, with at least nine thought to be suffering from PTSD, at least eight survivors of torture, and seven at risk of suicide, with several having attempted suicide since arriving in the UK. At least three are victims of trafficking and at least three are suffering from physical injuries after being tortured.

Read more: Diane Taylor, Guardian, https://is.gd/CjlmT4

What is the Adults at Risk Policy?

After the Hardial Singh principles, the Adults at Risk policy is the most important source of law for securing the release of people from immigration detention. It provides a detailed framework for assessing the vulnerability of detainees and balancing vulnerability against the timetable for removal, the risk of absconding and the risk of offending. This post provides an introduction to the policy and explains some of the issues that arise with relying on it in practice.

The Adults at Risk policy was introduced to comply with section 59 of the Immigration Act 2016. Section 59 requires the Home Secretary to issue guidance for determining whether a person is vulnerable and consequently whether they should be detained. It replaced a much vaguer (although potentially more generous) policy contained within the old Chapter 55 Enforcement Instructions and Guidance.

There are two Home Office documents labelled ‘Adults at Risk policy’. The first is the actual policy statement issued to comply with Section 59. This contains the general principles by which vulnerability is assessed and compared with other factors relevant to detention. The second is the guidance issued to Home Office caseworkers. This specifies how detention decisions should be made.

The caseworker guidance goes into much more detail than the statutory guidance. It is therefore much more helpful on a day-to-day basis for practitioners trying to get a vulnerable client released from detention. Both documents are important, but the focus in this post will be on the caseworker guidance.

Read more: Freemovement, https://is.gd/8E1Acu

Fee Waiver Policy: Who Qualifies and What Does the Home Office Guidance Say?

Fees for immigration applications have increased sharply in recent years. Most applications for leave to remain submitted from the UK (other than under the Points Based System) now cost £1,033. In addition, applicants may need to pay an Immigration Health Surcharge (usually £1,000, due to rise to £1,560 in October) for an application for two and a half years’ leave to remain. On average, therefore, an applicant will need to spend a bit more than £2,000 to get leave to remain in the UK (rising to £2,500 in a matter of months with the planned surcharge increase).

This is, in fact, the very bare minimum. One may also need to pay £150 to pass an English language test; £800 for using a Super Priority Service to get a decision in 24 hours for those who simply cannot afford not to travel for months while the Home Office makes a decision on their application; and more to get legal representation. Legal representation is unfortunately no longer a luxury but often a necessity. The Immigration Rules are increasingly hard to navigate, and legal aid is limited almost exclusively to asylum claims and applications on the basis of domestic abuse. Unsurprisingly, not everyone can afford the fees to regularise their immigration status or renew their leave to remain in the UK.

Read more: Freemovement, https://is.gd/n0PCwJ

Incidents of Detainees at Risk of Self-Harm Q2 2020

On 4 August 2020, the Home Office issued new guidance to its civil servants on how to respond to immigration appeals that the department has lost. The 18-page document can be found here (pdf download). For the most part, the guidance is welcome. Anyone who has ever won an appeal knows the pains of writing to the post-decision team again and again trying to actually get the decision implemented. The new guidance looks to eradicate or at least minimise that.

The guidance acknowledges straight off the bat that: It is unlawful to “deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it” Mersin (2000) EWHC Admin 348. This is, unfortunately, how it feels for a lot of practitioners. In the most recent appeal I did, it took four months and a pre-action protocol letter complaining about the delay before the decision was implemented. Entry clearance appeals are even worse because applicants usually need to hand in their passport, meaning it’s common to wait for the better part of six months from the appeal being allowed to the visa being issued. That may not sound like long but that’s potentially another six months of separation for a torn-apart family, or six months of lost employment income for someone struggling to pay the bills for lack of a right to work.

Read more: Freemovement, https://is.gd/Xm9NGN

Home Office Spends More Than £1m Deporting Hundreds of People at Height of Lockdown

New figures show 285 individuals were removed to Albania, Romania, Lithuania and Poland on seven charter flights between 1 April and 30 June 2020, along with 374 escorts, at a cost to the taxpayer of £1,105,931. One of the deportees was a Polish woman who had lived in the UK for 10 years and was removed on the basis of a shoplifting conviction for which she spent six months in jail, forcing her to leave her 11-year-old son behind. The data, obtained through a freedom of information request by campaign group No Deportations, show there were three flights chartered to Romania, two to Albania and one to both Poland and Lithuania. The deportees were made up of 268 men and 17 women. They departed from the UK at a time when the government had issued stay-at-home instructions stating that people should not fly unless it was essential, and when international air travel had dropped by 95 per cent.

The Independent understands that no Covid-19 testing was undertaken for those on the flights. The Home Office said those being returned were seen by a healthcare professional prior to departure, and that anyone exhibiting symptoms would be removed from the flight and placed into protective isolation. Labour MP Diane Abbott said the fact that the government was deporting people in the middle of a global pandemic was a “scandal”, adding: “It seems that maintaining draconian immigration practices was more important to the government than public health.”

Read more: May Bulman, Independent, https://is.gd/MxSqWk

Good News For Migrants Falsely Accused of English Language Test Cheating


Migrants who win an appeal after being wrongly accused of cheating on their English language visa test should now get a proper grant of leave to remain as a result. Following a legal challenge, the Home Office has committed to granting two and a half years of leave to migrants who win a TOEIC appeal based on their Article 8 rights. The commitment comes after solicitors at Bindmans brought a judicial review on behalf of a client, MM, who was cleared of cheating on appeal but only granted 60 days’ leave. The firm describes that as “an insult to the years that he has spent fighting to clear his name”, but managed to get the department to change its mind:

Following further judicial review proceedings, the Home Office has now accepted that MM, and other successful TOEIC appellants, must be given 2.5 years leave to remain. In a consent order settling the case, the Home Office formally agrees that “where a TOEIC appeal is allowed outside the rules on Article 8 ECHR grounds, and it is established that the person did not cheat in the TOEIC exam, that the appropriate grant of leave is 2.5 years”. Bindmans says that others in this position should make use of the order if offered anything less than two and a half years. Since 2014, thousands of people have successfully appealed after being wrongly accused of cheating on their TOEIC (Test of English for International Communication) visa test.

Read more: Freemovement, https://is.gd/vy37sA

Incidents of Self-Harm Requiring Medical Treatment Q2/2020

Hunger Strikes in Immigratin Detention Q2 2020