“We welcome the news that the U.K. government is to set up a resettlement scheme for Afghan refugees similar to the Syrian programme. It’s important that the Prime Minister explains how many people will be assisted in this humanitarian crisis so that there is a level of accountability.

“We should not forget that there are thousands of Afghan asylum seekers already in the U.K. who are unable to build a life because they are still waiting for their asylum claim decided upon. Many have been waiting years for a decision and are unable to seek work or study or start their lives. Instead they are reduced to a state of poverty, destitution and severe mental health problems brought on by the delays. Still others have come into the U.K. by “irregular” routes.

“We are therefore calling on the Prime Minister Boris Johnstone to recognise the plight of Afghans already here and grant them asylum and not to differentiate between those who arrived by boat, lorry or other “irregular” means. He should surely be able to connect the shocking images we saw on the news in the last few days of Afghans clinging to the wings of planes to those Afghans who are already here. They are seeking asylum yet cannot begin to rebuild their lives, work or pay taxes without the piece of paper that says they have a right to remain. We need common sense to prevail and the rights of refugees to be respected. A helping hand now can reap dividends for the country.”

Source: Robina Qureshi, Director Positive Action in Housing

There have been recent rule changes affecting most immigration applications made after 1 December 2020 under the immigration rules, and those seeking to formalise their immigration status in the UK by making applications for indefinite leave to remain or to naturalise as British citizens will need to look at their personal histories to assess whether past criminal convictions will impact upon the success of their applications. These will be discussed in turn below.

What sort of criminal offences will be considered?
Criminal offences which attract custodial sentences are perhaps the most obvious considerations which will be taken into account when assessing an immigration application; whether such offences will result in mandatory refusals will be dealt with below. Even where minor offences received out-of-court disposals (such as fines, community orders, or suspended sentences), the number of offences and the time frame in which they were committed may lead to refusal where it is determined that the applicant is a ‘persistent offender’.

Read more: Geraldine Peterson, Richmond Chambers, https://is.gd/coZB6U

Court of Appeal Lays Down Hyper-Strict Approach to EU Asylum Claims

ZV (Lithuania) v Secretary of State for the Home Department [2021] EWCA Civ 1196 is an important case about the admissibility of asylum claims made by EU citizens. There is a long-standing rule that asylum claims by EU nationals will only be considered in exceptional circumstances. It is presently contained in the Immigration Rules (and was based on EU law) and the government is proposing to replicate it in the Nationality and Borders Bill.

The rule is based on the twin assumptions that an EU member state will not persecute its own citizens and that, if a third party is attempting to persecute its citizens, the state will be willing and able to protect them. As the Court of Appeal notes in this case, the rule is known at EU level as the “Spanish protocol” because the rule was proposed by the Spanish government (it was annoyed with Belgium for granting asylum to members of the separatist group ETA). In principle, the rule sounds quite sensible.

The facts of this case illustrate how harsh it can be. ZV is a Lithuanian citizen who was trafficked to the UK. Like all trafficking victims, she suffered horrendous abuse and exploitation. In 2012, she managed to briefly escape back to Lithuania while the man who had trafficked her to the UK was in prison. The trafficker’s associates found ZV, abducted and raped her, and then re-trafficked her to the UK.

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

UK Proposal for Offshore Processing of Asylum Seekers, Ineffective, Costly and Cruel

With the British government's new Nationality and Borders Bill proposing legislation to allow the UK to offshore asylum seekers in a similar way, the Kaldor Centre's report is a timely and important read. The report finds that the Australian model of offshore processing is cruel, costly and ineffective. In particular, the policy:

- Does not deter irregular maritime migration, 'stop the boats' or 'break the business model' of people smuggling networks;

- Does not 'save lives at sea' or achieve any other humanitarian objective; and

Kaldor Centre stresses that the Australian offshore processing model cannot be implemented in accordance with international law and basic human rights standards. As the driving principle behind the policy is deterrence, this means that the conditions offshore must be as bad as, or worse than, those from which people have fled.

Priti Patel has been accused of presiding over an “expensive but ineffective” removals strategy after it emerged the cost per deportee has surged by 200 per cent in four years. An analysis of data by The Independent reveals that the average number of returnees on each charter flight has dropped from 45 in 2016 to just 15 last year – meaning the Home Office was spending an estimated £13,300 for each person removed, compared with £4,444 four years before.

Sixty charter flights left the UK in 2020, with a total of 883 people on board, according to the analysis of figures obtained through freedom of information law by campaign group No Deportations. This compares to a total of 1,563 people on board a total of 35 flights in 2016. Shadow immigration minister Bambos Charalambous said: “This is yet another example of incompetence from Conservative ministers at the Home Office, with the taxpayer left to pick up the bill.”

Read more: May Bulman, Independent, https://is.gd/PV92Lc

The ripple effects of Paposhvili v Belgium [2016] ECHR 1113 continue to be felt at the boundary of Article 3 ECHR. In the first reported decision of its kind, the Upper Tribunal has found that the “modified” (for which, read “lowered”) test for Article 3 breach in medical treatment cases – enthusiastically endorsed by the Supreme Court in AM (Zimbabwe) [2020] UKSC 17 – now also applies to so-called “material deprivation” or “living conditions” claims.

Ainte (material deprivation, Art 3, AM) (Zimbabwe) [2021] UKUT 203 (IAC) was an appeal against deportation to Somalia. Mr Ainte argued that his removal to Moghadishu “would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3”.

The headnote states: i) Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission. (ii) In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.

In other words, the almost always insuperable threshold imposed by N v UK [2008] ECHR 453 in such cases (“very exceptional”), which reflected an embedded judicial caution towards the expansion of Article 3, has been superseded. Risk on return should be evaluated on the same terms as the Paposhvili test: “intense suffering or a significant reduction in life expectancy”.

Read more: Freemovement, https://is.gd/G3qiso