News & Views Monday 16th May to Sunday 22nd May 2016

News & Views Monday 16th May to Sunday 23rd May 2016

J. N v UK – ECtHR Rule Detention Violation of Article 8 (£13,000 Damages)

J.N. v. the United Kingdom (no. 37289/12)
The case concerned a complaint about the system of immigration detention in the United Kingdom. The applicant, Mr J.N., is an Iranian national who was born in 1971 and lives in Barking (England, UK). Mr J.N. arrived in the UK in January 2003 and claimed asylum. His claim was refused in October 2003. He was subsequently convicted of indecent assault, sentenced to 12 months’ imprisonment and served with a deportation order. On completion of his sentence, he remained in immigration detention for a total of 55 months, notably from March 2005 to December 2007 and then from January 2008 to December 2009.

During the first period of detention Mr J.N. indicated that he wished to return to Iran and eventually, in November 2007, the Iranian Embassy agreed to issue a travel document provided that he sign a “disclaimer” consenting to his return. He refused, however, to sign the disclaimer. He was released in December 2007 pursuant to a court order but became liable for detention again because of failure to comply with the conditions for his release, namely that he take the necessary steps to obtain travel documents. He was thus detained again one month later while reporting to the immigration authorities. During this second period of detention, Mr J.N. continued to repeatedly refuse to cooperate with the authorities’ attempts to engage him in a voluntary return or to sign a disclaimer. He was released in December 2009 when the High Court granted him permission to apply for judicial review and the Home Office was ordered to release him on bail.

Mr J.N. brought two sets of judicial review proceedings: the first during his initial period of immigration detention, which he failed to pursue following his release in December 2007; and the second, which resulted in the Administrative Court finding that his detention had been unlawful from 14 September 2009 and awarding him 6,150 British pounds in damages. The Administrative Court notably concluded that “the woeful lack of energy and impetus” applied to Mr J.N.’s case from at least the middle of 2008 meant that it could not be said that his deportation was being pursued with the obligation under the relevant national law to act with “reasonable diligence and expedition”.

Relying on Article 5 § 1 (f) (right to liberty and security), Mr J.N. complained about the excessive length of his detention as well as the system of immigration detention in the UK, notably alleging that the time-limits on the maximum period of immigration detention had been unclear and that there had been no automatic judicial review.

Violation of Article 5 § 1 – in respect of the period of detention from mid-2008 to 14 September 2009

Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 10,000 (costs and expenses)

This Briefing, Published on ECHR, 19/05/2016

Full transcription of the decision here . . . .

ETS - Evidence - Burden of Proof

SM and Qadir v Secretary of State for the Home Department (ETS - Evidence - Burden of Proof) [2016] UKUT 229 (IAC)

[Headnote:
(i) The Secretary of State's generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty.
(ii) However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of the evidence adduced by the appellants, the Secretary of State failed to discharge the legal burden of proving dishonesty on their part.

Introduction

These appeals belong to the relatively substantial cohort of so-called "ETS/TOEIC" cases. In each case the Secretary of State for the Home Department (the " Secretary of State") has made a decision cancelling the Appellants' leave to remain in the United Kingdom on the ground that they secured an English language qualification, recorded in a "TOEIC" certificate, by fraud. Each Appellant appealed, unsuccessfully, to the First-tier Tribunal (the " FtT"), whose decisions were subsequently set aside by this Tribunal as erroneous in law. In the case of the Appellant SM, the error of law identified was, in essence, a disproportionate reliance on the Secretary of State's generic evidence without dealing adequately with the Appellant's evidence and a lack of adequate reasons. In the case of the Appellant Mr Qadir, the FtT was held to have erred in law on the issue of burden of proof. It now falls to this Tribunal to remake the decisions of the FtT.

Decision

105. We re-make the decision of the FtT in each case by allowing the Appellants' appeals.

Postscript

106. We consider it appropriate to record that, following the circulation of this judgment in draft in the usual way, having considered the response on behalf of the Secretary of State the author of the judgment took the precaution of listening to the recording of Ms Collings' evidence in particular. This was an arid exercise since (notwithstanding repeated judicial exhortations) Ms Collings failed consistently to speak sufficiently audibly to enable her evidence to be efficaciously recorded.

107. Finally, we take the opportunity to emphasise strongly the caution and respect with which parties and representatives must treat embargoed judgments. All forms of unauthorised dissemination will be met with rigorous measures. Any slightest doubt should be proactively and timeously raised with the Tribunal.

Published on Bailii, 13/05/2016 http://tinyurl.com/zs5q2f5

Refusal to Permit Family Members of a child to Enter/remain in the UK Disproportionate Breach of Article 8 ECHR

AT and another (Article 8 ECHR – Child Refugee Family Reunification) Eritrea [2016] UKUT 00227 (IAC)

[Headnote: While the Immigration Rules make no provision for family reunification in the United Kingdom in the case of a child who has been granted asylum, a refusal to permit the family members of such child to enter and remain in the United Kingdom may constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR.]

Introduction

1. In this appeal, the Appellants are two of the three protagonists concerned. All three are members of the same family unit and all are nationals of Eritrea. They consist of a mother and her two sons. The two Appellants currently reside in Sudan. The first Appellant is the mother, now aged 34 years. The second Appellant is her younger son, now aged fifteen years. The third family member, M, is aged 19 years. He is described in many parts of the evidence as the "sponsor".

2. One stand out feature of M's circumstances is that, having arrived in the United Kingdom as an unaccompanied minor in 2012, then aged 16, he succeeded in his appeal against a refusal of asylum, with the result that the Secretary of State for the Home Department (the "Secretary of State") granted him five years limited leave to remain in the United Kingdom, as a refugee, a period which will expire on 07 April 2018. M aspires to achieve family reunification with his mother and brother, the two Appellants, in the United Kingdom. He does so primarily through the vehicle of Article 8 ECHR.

41. Is any other public interest engaged? Mr Poole, in his skeleton argument, sought to identify two such interests:

(a) the safeguarding of children, specifically those in the position of the sponsor, who would be at risk of trafficking and exploitation in their quest to reach the United Kingdom; and

(b) additional pressure on publicly funded childrens' services.

There is no primary legislation underpinning either of these asserted public interests. Moreover, there is no evidence underlying them – in the form of, for example, reports or commentaries. I recognise that evidence of this kind is not a prerequisite to the recognition of a public interest in the Article 8(2) balancing exercise. However, I cannot overlook that these public interests are advanced through the medium of counsel's written and oral submissions.

42. Furthermore, this unsatisfactory dimension of the Secretary of State's case is highlighted by the belated production of certain data. While I have considered this material, I observe that it does not have the benefit of related reports or the illumination or elaboration of witness statements. Nor is there any financial data even at a general level. In addition, the figures require clarification, which is lacking. In my judgment, the only conclusion which can safely be made is that there has been some increase in the advent of unaccompanied children to the United Kingdom during the past two years. That said, the figures are substantially smaller than those applicable to the years 2008 and 2009. While I take all of this evidence, including counsel's submissions, into account, I consider that its potency is questionable for the reasons given. Furthermore, I reiterate my analysis of the governing legal principles above.

43. This brings me to my overarching conclusion. Taking into account the considerations, assessments and reasons highlighted in [34] – [42] above, it is my conclusion that, balancing everything, the impugned decisions of the ECO, acting on behalf of the Secretary of State, interfere disproportionately with the right to respect for family life enjoyed by the Appellants and M. As the ultimate arbiter of proportionality I decide accordingly. Thus I re-make the decision of the FtT by allowing the appeals.

Decision

The appeals are allowed under Article 8 ECHR

Published on Refworld, 17/05/2016

http://www.refworld.org/docid/573ac9b24.html

Seminar Course: Registration of Children as British Citizens For Non-Lawyers

6th June 2016, 4pm to 6:30pm, CCLC

Delivered in association with Corams Children’s Legal Centre (CCLC), this free training session provides an introduction for non-legal professionals to registering children as British citizens, including identifying children who might be eligible, how the process works, and where to go for further advice and assistance.

Trainer: Solange Valdez
Location: Coram Community Campus, 41 Brunswick Square, London WC1N 1AZ
Cost: Freee. All resources and refreshments provided.
TO BOOK, please download and complete event_event_booking_form2015 and email it to mcp@coramclc.org.uk. For further information about this course, please contact CCLC: mcp@coramclc.org.uk or on 020 7713 2028.‎
https://prcbc.wordpress.com/training/
Solange Valdez
Director/Solicitor
Mobile: 07593 103 706
Project for the Registration of Children as British Citizens (PRCBC)
Website: https://prcbc.wordpress.com

PRCBC is hosted by Asylum Aid,
Club Union House, 253-254 Upper Street. London N1 1RY
Charitable Registered Company number: 09713482

Observer View on Immigration

Europe, including Britain, is in the eye of a humanitarian and refugee storm the size and scale of which national governments and the EU are only beginning to comprehend. For reasons to do with its geographical and historical ties to the Middle East and Africa, its comparative security and its relative prosperity, Europe has become the 21st-century destination of choice for the war-ravaged, the persecuted, the displaced, the homeless and the penniless from numerous less fortunate and less stable lands. The crisis facing Europe has had its principal focus, for much of the past year, on Syria. The extent of the human tragedy that has befallen that country since 2011 requires no elaboration here. More than half the pre-war population of 22 million people has been displaced. The cessation of hostilities, painstakingly agreed earlier this year, has broken down. So, too, has the Geneva peace process.

Read more: Observer Editorial, http://tinyurl.com/z27mowq

Asylum Research Consultancy (ARC) COI Update Volume 125

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 3 May and 16 May 2016. http://tinyurl.com/zqcbzth

MS (Trafficking – Tribunal's Powers – Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC)

[Headnote:
(i) Having regard to the decision of the ECtHR in Rantsev v Cyprus and Russia [2010] 51 EHRR 1, Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human trafficking.

(ii) Trafficking decisions are not immigration decisions within the compass of the 2002 Act, with the result that judicial review provides the appropriate mechanism for direct challenge.

(iii) Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.

(iv) Where satisfied that a negative trafficking decision is perverse, Tribunals are empowered to make their own decision on whether an appellant was a victim of trafficking.

(v) Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State's policy guidance.

(vi) While, in principle it seems that other public law misdemeanours can also be considered by Tribunals, this issue does not arise for determination in the present appeal.

(vii) Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking.

(viii) The procedural obligations inherent in Article 4 ECHR are linked to those enshrined in the Trafficking Convention, Articles 10(2) and 18 in particular.

(ix) Any attempt to remove a trafficking victim from the United Kingdom in circumstances where the said procedural obligations have not been discharged will normally be unlawful.]

Publisned on Refworld, 17/05/2016

http://tinyurl.com/j7bld7l

Asylum Seeker Through 90 Eggs at the Home Office

An illegal immigrant who hurled 90 eggs at the Home Office headquarters because they had refused to grant him asylum in UK will be allowed to stay here. A court heard. Feridon Rostami screamed 'f***ing criminals' as he launched the barrage at the government office in Westminster in February this year. But despite being convicted of causing criminal damage and refusing to apologise for his actions, the 32-year-old is staying in Britain because Iran refuses to have him back. The Iranian's actions cost £405.37 to clean up from the side of the building after he was arrested at the scene on 2 February. A security guard reportedly ran for cover as Rostami carried out the protest with £7.29 worth of eggs bought from an off-licence in Shepherd's Bush.

Majit, R (On the Application Of) v SSHD [2016] EWHC 741 (Admin) (18 May 2016)

In the High Court of Justice - Queen^s Bench Division - The Administrative Court

This is an application for a so-called "generic" stay - in fact, an interim injunction - on all Dublin III Regulation returns to Bulgaria pending judgment in a test case relating to that issue (Khaled v Secretary of State for the Home Department CO/2899/2015). Dublin III (shorthand for Regulation (EU) No 604/2013) is the current legal basis for the principle in the European Union that only one Member State is responsible for examining an asylum application and other Member States may return persons to that Member State for an assessment to occur.

The injunction sought in this case will not benefit the claimant since there is already an order of this Court granting him permission to apply for judicial review and staying his case pending judgment in the test case. Thus, effectively, what is being sought is an injunction to benefit other persons whom the Secretary of State intends to remove to Bulgaria under Dublin III, even if those other person have made no application in this Court or elsewhere in relation to their removal unless they consent to be removed. The issue was not raised in Khaled.

The justification for the application is that apparently there are already at least forty orders of the Court of Appeal or the Upper Tribunal Immigration Asylum Chamber where permission to apply for judicial review of decisions to remove to Bulgaria has been granted. Yet, it is said by Mr Halim, the Secretary of State egregiously continues to remove persons to Bulgaria under Dublin III. He submits that the grant of permission to apply for judicial review in those other cases illustrates that there is clearly a triable issue in such cases and the balance of convenience undoubtedly points in the direction of interim injunctive relief.

Source: Duncan Lewis, http://tinyurl.com/hlzcp7v

Last updated 20 May, 2016