In a landmark ruling, an immigration tribunal has condemned the Home Office for having based their decision in 2014 to deport students for allegedly cheating on their ETS TOEIC (Test of English for International Communication) exam on ‘hearsay’. At the time, the Home Office took action following the airing of a BBC documentary, which showed undercover BBC journalists acquiring English language test certificates through fraud and deceit.   The Home Office’s subsequent investigation claimed that evidence was found that 46,000 TOEIC tests were “invalid and questionable” which resulted in 65 colleges losing their sponsorship licences and 50,000 students being either deported or barred from re-entry. Two of the students affected by the Home Office’s actions appealed against the claims made that they had cheated in their test.  On 23 March 2016 the UK’s Upper Tribunal (Asylum and Immigration) found that the evidence these decisions were based on had “multiple frailties and shortcomings” and that the Home Office had failed to sufficiently prove that the students in question had in fact cheated to obtain their visa, before detaining and deporting them.

Read more: Gherson, 05/05/2016

France: Clashes and Tear Gas as Police Evict 277 Asylum Seekers

Protesters in Paris have been tear-gassed as they demonstrated against the decision to evict at least 277 asylum seekers who had been living in a high school. Almost three hundred refugees had camped out in an empty high school that was due to reopen after renovation. Demonstrators, wearing masks and hoods, formed a human chain to stop officers fro entering the building. But police deployed tear gas on the rally and managed to remove each one of the migrants living in the school. The refugees, who were mostly from Afghanistan, Eritrea and Somalia, started occupying the Jean Jaurès School on April 21 to 22. Huge crowds of protesters linked arms to guard the gates this morning after the authorities ruled that the asylum seekers must be removed to allow the school to open. But the rally turned violent when police decided to use teargas to disperse the crowd as they tried to stop them from entering the building, Paris police chief Michel Cadot said. According to Eric Coquerel, from the Left Party, who took part in the protest, the police use of force was “unjustified.”

Read more: Vickiie Oliphant, Express 04/05/2016

Foreign National Criminal - Situation in Which Deportation is No Longer Permissible

KD (JAMAICA) -v- SSHD

 Part 1. Introduction

1.   This is an appeal against an Upper Tribunal decision allowing a foreign criminal to remain in this country. This is a case in which, if successive Secretaries of State had exercised their powers and complied with the Immigration Rules, the foreign criminal could and should have been deported many years ago. The issue in this appeal is whether the series of delays and administrative errors by officials has led to a situation in which deportation is no longer permissible.

 2. The appellant before this court and respondent before the tribunals is the Secretary of State for the Home Department. The respondent in this court and appellant before the tribunals is Mr Dennis. To refer to the parties as appellant and respondent would be confusing; I shall refer to the parties as Mr Dennis and the Secretary of State. I shall refer to the Borders, Citizenship and Immigration Act 2009 as "the 2009 Act". I shall refer to the European Convention on Human Rights as "ECHR". Article 8 of ECHR provides:

·  "1. Everyone has the right to respect for his private and family life, his home and his correspondence

·   2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."


39. With these words ringing in my ears, I have read and re-read the Upper Tribunal decision. In a series of passages the judge fully recognised and took into account the high public importance of deporting foreign criminals (see in particular paragraphs 51 to 57 and 71 to 77).

 40. Now let me return to paragraph 43 of MF. The test of "exceptional circumstances" according to that paragraph means that very compelling reasons are required in order to outweigh the public interest in deporting Mr Dennis. In the present case, both the First-tier Tribunal and the Upper Tribunal have found very compelling reasons to outweigh the high public interest in deporting Mr Dennis. I therefore find that the Upper Tribunal's error of law is not material.

 41. In other words, if the Upper Tribunal had applied the test set out in paragraphs 390 to 399A of the relevant rules, it would inevitably have come to the same conclusion as it did reach under the old rules.
 
42. The next point to consider is this. Suppose my finding is wrong and the Court of Appeal remit this case to the Upper Tribunal. Two and a half years have now elapsed since the last Upper Tribunal hearing. Yet more time will elapse before the re-hearing in the Upper Tribunal. By then Mr Dennis will have been in this country for an even longer period. His case based on family life and his roots within the community will be even stronger. I see no prospect of the Upper Tribunal on any future occasion rejecting Mr Dennis' article 8 claim.

43. For all of these reasons, I have come to the conclusion that the Upper Tribunal's decision of 6 November 2013 must stand and that the Secretary of State's appeal should be dismissed.

Published on Bailii, 04/05/2016

Immigration Tribunal Can Appoint Litigation Friend Despite No Provision in the Rules

In the recent case of R (on the application of C) v First-Tier Tribunal and Others [2016] EWHC 707 (Admin) (not yet on BAILII but available on Westlaw) Picken J ruled that the immigration tribunal can appoint a litigation friend to represent a person who lacks capacity even though there is no provision to do so in the procedure rules, nor indeed in the statutory underpinnings of the tribunal.

The context to this case is that in July 2015 the Law Society issued a Practice Note (see section 4.7 and 4.7.1) which suggests that where a person lacks capacity to give instructions to a lawyer, a solicitor will not be able to act for that person in the absence of a litigation friend. This in effect put an end to the informal way in which the issue had previously been fudged in immigration cases, which was for lawyers to act on the clients last known instructions and/or in their best interests. In the context of immigration law, that was usually to resist removal and/or obtain lawful status. If the client regained capacity and wanted to depart at that time, he or she would be able to do so.

The Official Solicitor has no statutory power to intervene in tribunal proceedings and the immigration tribunal procedure rules do not allow for the appointment of a litigation friend, in contrast with many other sets of procedural rules and the Civil Procedure Rules (CPR).  But with no lawyer acting to protect the interests of a person lacking capacity, the Home Office will simply take enforcement action and remove him or her.

Read  more: Colin Yeo, Freemovement, 29/04/2016

Asylum Research Consultancy (ARC) COI Update Volume 124

This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 19 April and 2 May 2016. Download Volume 124

Important Tools for Anti-Deportation Campaigners – April 2016

UK Foreign and Commonwealth Office (UKFCO) Human Rights and Democracy Report for 2015

Published on the 21st of April 2016 the reports cover political, economic, ethnic and religious persecution, on 30 countries that UK FCO have criticized as severely restricting the Human Rights of their citizens. Though UK FCO are clear about the Human Rights abuses/violations that are occurring in these countries, they are priority removal destination countries for the UK Home Office.

This annual report is an essential tool not only for campaigning against deportations but are "authoritative" sources for compiling reports for asylum/immigration/migration hearings, making a fresh asylum claim.

Chapter IV: Human Rights Priority Countries – Gives details of Top Thirty Countries of Concern to UK FCO, they are:

Afghanistan, Bahrain, Bangladesh, Burma, Burundi, Central African Republic (CAR, China, Colombia, Democratic People's Republic of Korea (DPRK, Democratic Republic of the Congo (DRC, Egypt, Eritrea, Iran, Iraq, The State of Israel and The Occupied Palestinian Territories (OPTs), Libya, Republic of Maldives, Pakistan, Russia, Saudi Arabia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Turkmenistan, Uzbekistan, Venezuela, Yemen, Zimbabwe.

The full report can be downloaded here . . . .

Government measures making people prove their nationality or face prosecution risk damaging community relations and are discriminatory, critics have warned. The Conservatives want to give police and immigration officers the power to order people who have been arrested to state their nationality and require those believed to be foreign nationals to produce their nationality documents, such as a passport. Failure to do so within 72 hours would become a criminal offence under the policing and crime bill currently going through parliament.  The government’s stated aim is to make it easier to remove foreign national offenders. But concerns have been raised by civil liberties groups, as well as some immigration and policing experts, that people will be targeted because of how they look, their accent and their skin colour.
Read more: Vikram Dodd, Guardian, 04/05/2016

Supreme Court Judgment Safeguards Rights of Immigration Detainees

O v Secretary of State for the Home Department [2016] UKSC 19: The judgment importantly reaffirms executive accountability for breaches of published policy (and other material public law errors) in the administrative detention of immigrants. The Supreme Court has overturned a line of jurisprudence (in particular Francis v SSHD [2015] 1 WLR 567) which had effectively immunised the executive from the consequences of policy breaches in certain types of administrative detention. The lower courts had held that where the words ‘shall… be detained…. unless….’ appeared in statute , there was a ‘statutory warrant’ for detention, so that an individual’s detention remained lawful  even if she was detained contrary to published Home Office policy. In a judgment with significant ramifications for detention under paragraph 2(1) Schedule 3 Immigration Act 1971 (pursuant to a criminal court’s recommendation for deportation, as was the case for this appellant) and also for detention under s.36(2) UK Borders Act 2007 ( detention pursuant to an ‘automatic’ deportation order, under very similarly worded legislation), the Supreme Court in O clarifies that notwithstanding that statutory language, the executive remains liable for unlawful detention if it commits a material public law error (such as acting contrary to published policy in a way which had a bearing on the decision to detain).

Read more: Laura Dubinsky, Doughty Street Chambers, 27/04/2016

Ban Ki-Moon Attacks 'Increasingly Restrictive' EU Asylum Policies

The UN secretary general, Ban Ki-moon, has hit out at “increasingly restrictive” European asylum policies in a speech to the Austrian parliament, which has voted to bring in some of the continent’s most stringent laws after a far-right politician won the first round of presidential elections. Ban did not name any country in his speech but, considering the venue, his comments appeared to allude at least in part to ongoing Austrian moves to tighten its border controls and reduce the entry of asylum seekers. “I am concerned that European countries are now adopting increasingly restrictive immigration and refugee policies. Such policies negatively affect the obligation of member states under international humanitarian law and European law,” he told MPs.

Read more: Patrick Kingsley, Guardian, 28/04/2016

Continuing Conflicts that Create Refugees – Crisis Watch Issue 153 -

Deteriorated Situations in April 2016: Afghanistan, Bangladesh, Gambia, Iraq, Macedonia, Nagorno-Karabakh (Azerbaijan), Republic of Congo, Syria

Improved Situations: Central African Republic, South Sudan

May 2016 Outlook: Conflict Risk Alert: Nagorno-Karabakh (Azerbaijan)
Conflict Resolution Opportunity: South Sudan, Yemen

April saw fighting escalate again in Syria and Afghanistan, and erupt in Nagorno-Karabakh between Armenian-backed separatists and Azerbaijani forces. In Bangladesh, election violence and killings by extremist groups showed how new heights of government-opposition rivalry and state repression have benefitted violent political party wings and extremist groups alike. Political tensions intensified in Iraq and Macedonia, and security forces severely supressed opposition protests in the Republic of Congo and Gambia. On a positive note, new governments were formed in the Central African Republic and South Sudan to consolidate peace gains, and talks to end Yemen’s one-year-old civil war got underway, albeit later than planned.

In Syria, the fragile “cessation of hostilities” which began on 27 February collapsed in the north of the country and UN-brokered talks in Geneva unravelled. Violence escalated in Aleppo, where over 250 people were reported killed by days of regime and rebel bombardments starting on 22 April. That the truce lasted as long as it did shows the positive potential the U.S.-Russian partnership can play; its collapse, however, illustrates the limits of that partnership so long as differences over the ultimate ends persist, and support from regional actors, in particular Iran and Saudi Arabia, remains limited at best. Meanwhile, in Afghanistan, the launch of the Taliban’s spring offensive led to major clashes in several provinces, further dimming hopes of insurgents’ participation in peace efforts and contributing to increasingly strained relations between Kabul and Islamabad. On 19 April, the Taliban detonated a car bomb and launched a gun attack on the National Directorate of Security office, killing 64 in the deadliest insurgent attack on Kabul since 2001.

In the South Caucasus, heavy fighting erupted between Armenian-backed separatists and Azerbaijani forces in Nagorno-Karabakh on 2 April, claiming dozens of lives in the most serious escalation since the 1994 ceasefire. Each side accused the other of instigating the outbreak of fighting, and clashes continued across the line of contact despite the declaration of a Russian-brokered truce on 5 April. Crisis Group has cautioned that “there is a strong risk fighting will resume periodically, both to challenge the status quo on the ground and to attract diplomatic attention”, and called for the OSCE Minsk process to be re-energised through sustained high-level political leadership.

Several brutal murders in Bangladesh, including the killing of law student and secular blogger Nazimuddin Samad on 6 April, underscored the growing power and impunity of violent extremist groups. As the political rivalry between the ruling Awami League (AL) party and opposition Bangladesh National Party (BNP) continues to intensify, violent clashes around the second phase of the local elections also persisted, leaving more than 30 party activists reported killed. On 11 April, Crisis Group warned that the political conflict has resulted in “high levels of violence and a brutal state response”, calling for a strengthening and depoliticisation of all aspects of the criminal justice system to restore stability and ensure security.

In Iraq, Prime Minister Abadi’s failure to push his cabinet reshuffle through parliament, blocked by over 100 protesting parliamentarians, angered public opinion to such an extent that crowds of demonstrators broke into the fortified Green Zone on 30 April, prompting authorities to declare a state of emergency. Macedonia’s political crisis worsened as the opposition Social Democrats announced on 6 April that they would boycott the 5 June parliamentary elections due to the government’s failure to implement media reforms and clean up the electoral roll. The president’s decision to pardon all politicians facing criminal investigations for their alleged role in illegal wiretapping triggered days of protests in the capital and elsewhere.

In Africa, the Republic of Congo saw government forces continue to crack down on protests against President Sassou-Nguesso’s disputed 20 March re-election. When on 4 April they met armed resistance in a southern Brazzaville opposition stronghold, at least seventeen people were killed. The next day the government began airstrikes in the south which it said targeted former rebel bases. In Gambia, security forces broke up peaceful demonstrations calling for electoral reform and free speech on 14 April, arresting at least 50 protestors. The news that one arrested senior opposition official had been tortured to death sparked more protests and high-level arrests.

In a major step forward, after more than three years of turmoil, the Central African Republic’s newly-elected President Touadéra appointed his prime minister, who in turn chose a new government. Likewise South Sudan inched closer to implementing its August 2015 peace agreement when on 26 April Riek Machar, leader of the armed opposition (SPLM/A-IO), returned to Juba and was appointed first vice president. Two days later a transitional government was formed.

In Yemen, although fighting continued, UN-sponsored talks between President Hadi’s government and the Huthi/Saleh bloc – which got off to a stuttering start on 21 April – offer the best chance to end the war that began over a year ago and should be actively supported by all sides.

Download the full report here . . . .

High Court Rules Cyprus Refugees Decision Unlawful

In an important judgment, the High Court today declared that the Home Secretary’s decision, not to allow entry to the UK for six refugees, and their 19 children, currently stranded on a MoD base in Cyprus since 1998, is unlawful and must be quashed. In the ruling the judge, Mr Justice Foskett, has ordered Theresa May to retake her decision in light of the judgment and all relevant up-to-date factors. In October 1998, a group of 75 individuals from Ethiopia, Iraq, Sudan and Syria, were washed up on the British Sovereign Base Area (SBA) after a boat in which they were travelling to Italy foundered off the coast of Cyprus.    Following their arrival, the six claimants who took this case were detained for lengthy periods of ranging from eight to fourteen months.  

In 1999 - 2000 the six men and women were released after being recognised as refugees under the 1951 Refugee Convention following a procedure conducted by the SBA Administration in conjunction with the Home Office and UNHCR.    The six Claimants and their children have remained living on the SBA for the past 17 years stuck in a legal limbo. Many of the children have spent their whole lives on the SBA and those who were born there possess British Overseas Territories Citizenship.

Read more; Leigh Day, 28/04/2016