Home Office Urged to Concede Afghan Tribunal Appeals

Practitioners specialising in refugee protection and immigration work have urged the Home Office to concede tribunal appeals involving Afghan nationals that are waiting to be heard. The Afghanistan and Central Asian Association says it is fielding enormous numbers of contacts from people at risk in Afghanistan and their family members in the UK while the Immigration Law Practitioners Association says many of its members are advising British and Afghan nationals on legal routes to safety.

In a joint letter to government departments, they outline several detailed ‘concrete measures’ to help Afghan citizens. These include deploying more government staff to receive phone enquiries on the emergency assistance line. ‘Advisers reported that individuals can wait for over four hours to be put through and have been cut off whilst awaiting assistance,’ the letter says. Telephone lines should be free of charge for national and international calls. A facility should be set up for family members in the UK to submit email applications for family reunion where relatives are at risk and the UK is the most appropriate country of refuge. ‘This has a precedent in the 1990 Somali Family Reunion Policy during the then breaking crisis in the Horn of Africa,’ the letter says.

Read more: Law Gazette, https://is.gd/RJynJ9

Extensive Update: Criminal Convictions and Immigration Applications

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.

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. The following non-custodial sentences/out-of-court disposals may also have an adverse effect on an immigration application:-

Absolute or conditional discharges; Fines; Fixed penalty notices, penalty charge notices, penalty notices for disorder; Cautions, warnings and reprimands; Community resolutions; Community sentences; Detention and training orders; Confiscation and forfeiture orders; Civil orders; Disqualifications from driving; Anti-social behaviour orders/civil injunctions/Criminal Behaviour Orders.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 - Richond Chambers, https://is.gd/coZB6U

Switching Immigration Category While Present in the UK

Switching from one immigration category to another, from inside the UK, is not always straightforward. Certain routes allow you to stay in the UK under the Immigration Rules by switching visa category, whilst others do not. The updated Points-Based System (PBS), introduced at the end of 2020, has opened more visa categories to in-country switching.

Switching can be a complicated process, often more complex than an initial visa application, and it is important to get this right. Whilst restrictions of many categories have eased with the new system, others continue to be strict on who is permitted to switch. Applying to switch your visa under a category where switching is not permitted from inside the UK leads to mandatory refusal. In cases where you cannot switch from your current visa status to another from inside the UK, you are required to leave the UK and apply for UK Entry Clearance from your country of nationality or usual residence.

Below is a summary of who can and cannot switch, and into which categories. This is not exhaustive of all scenarios under the Immigration Rules.

Read more: Gary McIndoe, Latitude Law, https://is.gd/1t0ObB

For years there had been policy on medico-legal reports from the Helen Bamber Foundation and Freedom from Torture. There was also a much scrappier policy on medical evidence not from those medical foundations. This new August 2021 policy (described optimistically as version 1.0) seeks to consolidate both. It is designed to tell Home Office caseworkers how to approach medical evidence and requests from legal representatives for more time to collect such evidence.

The new policy is fairly good on acknowledging the different kinds of medical evidence that may be available: Medical evidence may be submitted from a range of sources and in different forms, from appointment slips to MLRs. Printouts of medical records or appointment slips may be sufficient to establish the existence of a condition and you must take into account the lower standard of proof in assessing asylum claims.

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

Home Office Did Not Carry Out Safety Checks on Hotel Where Afghan Boy Died

Mohammed Munib Majeedi died on Wednesday 189th August, after falling out of a ninth-floor window at the OYO Metropolitan hotel in Sheffield city centre. He and his family had been placed in the hotel by the Home Office as part of a scheme to relocate Afghans who had helped the British embassy or army in Afghanistan. The Home Office did not carry out any safety checks on the hotel where a five-year-old Afghan boy fell to his death, the Guardian has learned, amid calls for an independent inquiry into the suitability of his accommodation.

The hotel had previously been used to house asylum seekers by the government contractor Mears, but the firm stopped using it because of fire safety concerns, a Home Office source confirmed on Friday. Asylum seekers were moved out of the hotel last year as “additional fire safety requirements meant that other accommodation provided better value for money”, the source said. They added: “Given the need for additional accommodation at short notice in the current situation, the hotel has been contracted again with additional fire safety mitigations in place.”

The Home Office did not carry out its own health and safety assessment, instead relying on the hotel’s own checks, the Guardian was told.

Read more: Helen Pidd and Diane Taylor, Guardian, https://is.gd/kRtbyj

Sending asylum seekers to have their claims processed “offshore” as a deterrent to boat arrivals doesn’t work, according to Australian experts examining their own country’s experience. A policy briefing by the Kaldor Centre at the University of New South Wales, published last week, warns other countries of the “failure of offshore processing to achieve its border protection, humanitarian and foreign policy aims”. The authors may well have the UK in mind: the recently published Borders Bill “paves the way for the processing of asylum claims outside the UK”, in the government’s own words.

Offshore processing involves a deal with another country to take asylum seekers and deal with their claims for refugee status, rather than handle them yourself. In Australia’s case, asylum seekers intercepted at sea were sent to “processing centres” in Nauru and Papua New Guinea (Manus Island).

The conditions there were notorious. To give a flavour from the report (footnotes omitted): Paediatricians reported that children transferred to Nauru were among the most traumatised they had ever seen. Medical experts working with UNHCR found the rates of mental illness offshore to be among the highest recorded in any surveyed population, and Médecins Sans Frontières (MSF) similarly reported that suffering on Nauru was some of the worst it had ever encountered, including in victims of torture.

Confirmed: Dependency for Extended Family Members Must be Unbroken

In Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220, the Court of Appeal has confirmed that where an extended family member applies for an EEA residency card, their period of dependency on their EEA citizen sponsor must have not have been broken up by periods in which they were not dependent. In short, this is because the purpose of granting rights to extended family members is to protect the free movement of EEA citizens. If the extended family member is not a dependant of the sponsoring EEA citizen at any given time, then there is no need to them give rights to protect the free movement of the EEA citizen.

As Bilaal’s write-up of the Upper Tribunal decision explains, this was an important issue under the EEA Regulations 2016 (and 2006). The tribunal decision had real practical impact by limiting the ability of some extended family members to get the EEA residence documents they needed to apply for settled status. Post-Brexit, the Court of Appeal decision will only be relevant to a small number of people with outstanding appeals or applications under the EEA Regulations.

Read more: Freemovement, https://is.gd/rD5B6k