In VC v Secretary of State for the Home Department [2016] EWHC 273 (Admin) the High Court has ruled that there is a systemic risk of unfairness when seriously mentally ill or incapacitated people are held in immigration detention. HHJ Seys Llewellyn QC held that where a detainee lacks capacity or is prevented from making effective representations about continued detention because of his mental illness, adjustments will need to be made to avoid a breaches of procedural fairness and breaches of the duty to make reasonable adjustments under the Equality Act 2010. The Judge stated that he could "readily envisage circumstances which would make it important that help is available to make representations on behalf of a detainee otherwise unrepresented, if he is mentally unwell enough to do so himself" [158].

 The Judge found that the absence of any provision for independent assistance for incapacitated detainees amounted to a lacuna in the system, stating that "the longer the period of serious mental illness and continuing detention, the more likely it seems to me that the Secretary of State will be required to consider by her officers whether independent representation of his interests is required by some third party or someone akin to an [Independent Mental Capacity Advocate]". He held that "the present system has no provision to fill the gap even where procedural fairness would require it" [168]. 

Source: Martha Spurrier, Doughty Street Solicitors, 18/02/2016

Inquiry Call Over Treatment of Glasgow Asylum Seekers

The Scottish Refugee Council has called for an investigation into allegations about the way asylum seekers are treated and housed in Glasgow. It follows claims in The Times newspaper that refugees have been kept in dirty and dangerous homes and have felt threatened and humiliated. The allegations include the case of a mother and baby housed in a cockroach-infested property in Glasgow.

The Home Office outsources the contract for asylum accommodation in Glasgow to multi-national services company Serco and its sub-contractor, the property management firm Orchard & Shipman (O&S). A number of allegations have been made in The Times against O&S, including those in relation to the behaviour of its employees and the quality of the housing it has provided. The claims made in the newspaper included O&S staff spraying air freshners at asylum seekers, while laughing and pinching their noses, and an allegation of a man being housed in a property with blood-spattered walls and no lock on the front door.
Read more: BBC News, 16/02/2016

Ryanair Court Victory Over Illegal Immigrant Fines

The Home Office may have to repay millions of pounds it fined airlines for bringing in illegal immigrants. Ryanair today (16/02/2016) won an appeal in the High Court against £4,000 in penalties for flying two Albanians into Edinburgh. The judge ruled airline staff who check passports could not be expected to spot clever forgeries. This means Ryanair and other airlines who have paid out millions since under the rules imposed in 1999 could try to reclaim their cash.  The ruling leaves Home Secretary Theresa May’s tough immigration policy in total disarray. The court was told Ryanair have paid out more than £400,000 a year since the law was imposed. Airlines in total have paid out millions after failing to spot forged documents before bogus travellers arrive at UK passport control.
Judge Damien Lochrane said airline staff who check passports could not be expected to spot expert forgeries which even trained immigration officers find it hard to detect. Fines were imposed in some cases but not in others, the judge said, as he cleared airline staff of any culpability for not knowing what the Home Office’s “inconsistent approach and inconsistent standards” were at the time.
Read more: Mirror, 16/02/2016

US: Latino High Schoolers Could Be Deported to "Certain Death"

On the night of Thursday February 11, 2016, the administration of Durham Public Schools in North Carolina unanimously passed a resolution condemning the arrests and intended deportations of its students. Immigration and Citizenship Enforcement (ICE), an agency of the U.S. Department of Homeland Security (DHS), has targeted Riverside High School, which has the highest proportion of Latino students in the Durham public school system (23%), as well as other high schools in the area, with at least six young people already being held in detention out of state.

The new Department of Homeland Security  guidelines announced over the New Year's holidays are specifically aimed at the large numbers of Central American children who made their way across the Mexican-U.S. border over the last two years. During this time, increased Mara Salvatrucha and 18th Street gang youth recruitment, extortion and murders have been reported. Young Central American immigrants, often fleeing from extreme levels of violence in their homeland, are recruitment targets for these notorious gangs.

Read more: Danica Jorden, Open Democracy, 16/02/2016

Judicial Review: What is Meant by “Totally Without Merit”

What is the difference between a case that is “totally without merit” and one that is “not arguable”? Are either of those more or less hopeless than a case that is “bound to fail”?  These are questions that only a lawyer would ask. But they are also ones that can determine whether a claimant for immigration status will have an opportunity to make his case in court, or be sent back to his purported persecutors on the papers alone. For that reason, they are questions that the Court of Appeal have addressed in Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82.
The background is the pressure on the courts and tribunals as a result of the increase in judicial review claims involving asylum and immigration matters, and the government’s response to it. Judicial review claims have long involved a filter system that requires a claimant to obtain the permission of the court for their case to be heard in full. This is done initially on the papers (i.e. without a hearing). The test has traditionally been thought to be whether the claim is “arguable” or whether it has “a realistic prospect of success”. If it is, proceed to a full hearing. If not, then what?

Read more: Matthew Hill, UK Human Rights Blog, 15/02/2016

Conflicts and Violence Take 'Huge Toll' On Children in 2015

Increasingly complex and widening conflicts have taken a huge toll on children in much of the Middle East in 2015, with parts of Africa and Asia facing protracted and relapsing wars that show no signs of abating, a senior United Nations child rights official said Monday 15th February 2016. Describing in her annual report to the UN Human Rights Council how extreme violence affected countries such as Afghanistan, Iraq, Nigeria and Syria, the Special Representative of the Secretary-General for Children and Armed Conflict, Leila Zerrougui, stressed that groups perpetrating extreme violence particularly targeted children. “Children were disproportionately affected, displaced and often the direct targets of acts of violence intended to cause maximum civilian casualties and terrorize entire communities,” Ms. Zerrougui said in the report, which covers the period from December 2014 to December 2015.

Read more: UN News Centre, 15/02/2016

Detainee on Suicide Watch found Dead in Colnebrook IRC

Amir Siman-Tov, thought to be in his thirties and of Moroccan origin, died in the early hours of Wednesday at the detention centre near Heathrow. A cause of death has not been established.  A note circulated to detainees by Mitie Care and Custody, which manages Colnbrook, said: “It is with sad regret that on the morning of 17 February 2016 Mr Amir Siman-Tov passed away. The police have attended the centre and we are assisting them with their inquiries. This may be distressing news to some people and I would request that if you would like to speak to a member of staff please do so immediately.”

A fellow detainee at Colnbrook, Adel Kader, 50, from Lebanon, told the GuardianSiman-Tov was put on the healthcare ward when he arrived, where detainees with physical or mental health problems are placed, and said he was on suicide watch when he died. The Home Office would not comment on the case.
Read more: Diane Taylor, Guardian, 18/02/2016

Police Seek 11 Men After Violence at Anti-Immigration Rally

Police have released pictures of 11 men they want to trace after violence flared between far-right protesters and anti-fascist groups at a rally in Dover last month. Officers have called for the public’s help to identify the men as they investigate the disorder at the Kent port town on 30 January. Bricks and smoke bombs were thrown as officers in riot gear and dog handlers struggled to keep order. Flag-waving demonstrators from the National Front and the rightwing South East Alliance marched to protest against the arrival of immigrants.
The Kent Anti-Racism Network organised a counter-demonstration, at which the shadow international development secretary, Diane Abbott, gave a speech. A reporter for LBC said one far-right demonstrator told her she should be raped and that she should not be able to have children. Detectives said they were reviewing CCTV images and footage posted on social media to find the perpetrators. Inspector Bill Thornton, of Kent police, said: “We appreciate some of those pictured have their faces obscured but we are hopeful they may still be recognisable.” Three men were arrested for public order offences, breaching the peace and possession of an offensive weapon.

Future of Schengen Agreement

The Schengen Agreement which introduced the abolition of border checks between its signatories has been the subject of much news lately because several participating countries are now paradoxically seeking to reinstate border controls.  Among signatories of the Schengen Agreement, Germany, Sweden, Austria, France, Denmark and Norway have already reintroduced temporary border checks. Many other countries have implemented stricter border checks without officially calling the measures 'reintroduction of border controls'. 

Temporary border controls are permitted under Article 23 of the Schengen Borders Code, which allows Member States to exceptionally reintroduce internal border controls as a last resort for a period of no more than 30 days where there is 'a serious threat to public policy or internal security', a period which can extended if the threat persists by periods of up to 30 day periods until a maximum of 6 months has been reached. Article 26 permits that period to be prolonged, no more than three times, for a further period of up to six months (ie an overall maximum of two years) if the exceptional circumstances persist.
Read more: Gherson Solicitors, 18/02/2016

Jail Sentence for First Modern Slavery Offences

A corporate accountability group has welcomed news that for the first time, a British businessman has been prosecuted and sentenced for human trafficking offences, but questions why there has been no prosecution in a similar case involving a company described as the ‘worst UK gangmaster ever’.   Bed factory owner, Mohammed Rafiq, was handed a two-year prison sentence after becoming the first businessman in the UK to be convicted of conspiracy to traffic. The sentence related to the trafficking of men from Hungary who were put to work in Mr Rafiq’s Leeds-based mattress factory, which supplied major UK brands including John Lewis and Next. The men were paid as little as £10 per week and made to live in cramped and unsafe conditions.

Read more:  Leigh Day Solicitors, 15/02/2016

 EU law allows an asylum seeker to be detained when the protection of national security or public order so requires

The introduction of a fresh asylum application by a person who is subject to a return decision does not render that decision inoperative

Judgment in Case C-601/15 PPU  J.N. v Staatssecretaris van Veiligheid en Justitie

Court of Justice of the European Union, Luxembourg, 15 February 2016