Confirmed: Home Office Can Ignore Human Rights Claims

The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. Unfortunately, it confirms that the Home Office can refuse to engage with a human rights claim for permission to stay in the UK which is not made using the specified form or process. That leaves the applicant with no right of appeal.

Background: human rights and appeals: MY applied for indefinite leave to remain as a victim of domestic abuse. The Home Office does not consider that such applications are inherently human rights claims. Human rights claims attract a right of appeal if refused; other immigration applications don’t. What this means is that people who apply for indefinite leave as victims of domestic abuse usually get only an administrative review if their application is refused.

What MY did in his application was to raise reasons why he would be unable to return to Pakistan, which amounted to a human rights claim. In refusing his application, the Home Office focused on whether or not he was really a victim of abuse, deciding that he was not. With regards to human rights, the refusal simply stated: Any submissions you may have made relating to your Human Rights have not been considered, as an application for settlement as a victim of Domestic Violence is not considered to be a Human Rights based application. Therefore, if you wish to apply for leave to remain, based upon your Human Rights or other compassionate practice it is open to you to apply using an appropriate application form.

Read more: Freemovement, rb.gy/ekgu3f

The Supreme Court has this morning handed down judgment in R (Majera) (formerly SM Rwanda) v Secretary of State for the Home Department [2021] UKSC 46. The appeal, as Lord Reed states in his opening sentence, raised a “question of constitutional importance”. That question was whether the government (or anyone else) can lawfully act in a manner inconsistent with a defective order of a court or tribunal without first having that order set aside or varied.

The answer, the Supreme Court has concluded unanimously, is no. Lord Reed delivered the court’s unanimous judgment allowing Mr Majera’s appeal. Central to his reasoning was the straightforward analysis that an order of a court or tribunal, even one of limited jurisdiction, is to be respected until it is properly set aside or appealed. But Lord Reed also considered that the Court of Appeal had been wrong to assume that even where a court has decided that an administrative act or decision was legally defective, the necessary result is that it has no legal effect.

Read more: Freemovement, https://rb.gy/6helks

Community Rallies For Elderly Sikh Woman as Home Office Try to Deport Her

Community campaigners are rallying behind an elderly Sikh woman from Smethwick who is being threatened with deportation, despite living in the country for over ten years. Outraged friends and neighbours of 75-year-old Gurmit Kaur have jumped to her defence after menacing letters threatening to “secure her removal” were sent to the senior citizen by the government immigration services. Septuagenarian Kaur, who has been living in Sandwell for over ten years but with no immigration papers, is a much-loved figure in her community and regularly volunteers at her local Sikh temple providing food for others. Yet, in spite of her commitment to her community and home, UK Border Agency contractor Capita has written to Ms Kaur demanding she either leaves or be arrested and deported. Legally an undocumented migrant, UK Visas and Immigration representatives have told Kaur to go back to India even though she has no family there. Gurmit Kaur came to the UK in 2009 and Smethwick has been home to her ever since. Gurmit has no family to turn to in the UK and no family to return to in Panjab, So the local Sikh Community of Smethwick have adopted her. Gurmit applied to stay but has been refused even though she has no family to return to in Panjab, India. Gurmit is a very kind woman, even though she has nothing she is still generous and will always give what she can, when she can. Most of her days are spent volunteering at the local Gurdwara.

At a local Black Lives Matter protest Gurmit was giving out fruit to protesters in solidarity with the cause. Gurmit is an asset and a kind auntie to Smethwick. We want her to stay here. Smethwick is home! Please share her story far and wide and help us campaign to get Gurmit Indefinite Leave to Remain in the UK.

Follow the campaign online:
Instagram: https://www.instagram.com/IAmGurmitKaur

Facebook: https://www.facebook.com/WeAreAllGurmitKaur

‘Cruel Lawlessness’ of Priti Patel’s Borders Bill

Leading barristers claim that Priti Patel’s controversial borders bill ‘represents the biggest legal assault on international refugee law ever seen in the UK’. A 95-page joint legal opinion piece written by four barristers – Raza Husain QC and Eleanor Mitchell at Matrix, Jason Pobjoy at Blackstone Chambersand Sarah Dobbie at 5 Essex Court – on behalf of the campaign group Freedom from Torture seeks to illustrate the unlawfulness of multiple aspects of the Bill. The legal opinion explains that ‘the principle at the heart of the Bill is the penalisation, both criminally and administratively, of those who arrive by irregular means in the UK to claim asylum’, and the Bill seeks to ‘reverse a number of important decisions of the UK Courts…without offering any justification for doing so’.

Steve Crawshaw, the policy director of Freedom from Torture, stated ‘the opposition to the government’s latest attempt at cruel lawlessness is growing. Torture survivors and hundreds of groups across the country have come together in a bigger national coalition than ever seen before. We need to ensure that humanity and international law can still triumph.’ The lawyers detail seven reasons why the government’s stance of criminalising asylum seekers breaches international law, including that the idea that such persons should not be penalised is at the core of the 1951 Refugee Convention; the Bill attacks the fundamental principle in the Convention that refugees are entitled to some element of choice as to where they claim asylum; the basis of the government’s attack is that they should use safe legal routes – however there are no such routes available; and the government’s criticism is empirically unfounded as 65% of those who arrive other than through resettlement are granted asylum.

Read more: Zaki Sarraf, Justice Gap, https://is.gd/KkNEIm

Can an Immigration Decision be Put on Ice During a Criminal Investigation?

This was the question before the Court of Appeal in R (X and others) v Secretary of State for the Home Department [2021] EWCA Civ 1480. The court decided that the answer is “yes”, with some caveats. Challenge to five-year delay pending fraud investigation

The case concerned a family who applied to extend their permission in the Tier 1 (Entrepreneur) route in April 2017. Shortly before they lodged the applications, HM Revenue and Customs launched a criminal investigation into the main applicant, Mr X. He and 12 other people were suspected of being involved in a tax fraud conspiracy. Mr X was arrested but not charged and released on bail in 2016 while the investigation went on. It proved particularly complex, with HMRC seizing around 800 pieces of evidence and obtaining information about over 100 bank accounts. Further delays were caused by litigation over the legality of the search warrants used to obtain much of the evidence. At the date of the Court of Appeal’s decision, the investigation remained ongoing.

At some point, the Home Office decided to delay making a decision on Mr X’s Entrepreneur application, as well as those of his dependants, until HMRC concluded its investigation. That decision was communicated to the family in 2017. The family challenged the Home Office’s decision to delay its decision on their immigration applications, alleging that:

Read more: Freemovement, rb.gy/a3gbcg

How Does the Home Office Assess Sexual Identity in Asylum Claims?

People claiming asylum based on their sexual orientation, including homosexuality and bisexuality, may form part of a “particular social group” which qualifies for protection under the Refugee Convention. In deciding whether to accept an asylum claim, part of the Home Office caseworker’s job is to assess the person’s overall credibility. This includes the often-difficult determination of whether the applicant is telling the truth about their sexual orientation. Somebody’s sexual orientation is a highly personal and subjective matter which manifests in many varied experiences. This post looks at the criteria used by the Home Office to assess it in the hope of shedding some light on the process. Different policies and procedures apply to claims based on gender identity, so trans and intersex claims are not considered in this post.

“Stigmatisation, shame and secrecy” Home Office guidance directs caseworkers to look for evidence that the person was made to feel “ashamed, humiliated or stigmatised” due to their sexual orientation. Examples can include being bullied by peers or teachers at school or harassed by members of their community. Caseworkers are also told to assess the applicant’s narrative to see whether it refers to “strong disapproval from external sources” indicating that the conduct is unacceptable, immoral, or sinful.

Read more: Freemovement, https://rb.gy/rzj7gj

Human Trafficking: UK Urged to Better Identify and Assist Victims

The Council of Europe’s expert group on human trafficking has urged the United Kingdom to take further steps to improve the identification of trafficking victims, to make sure victims receive legal and psychological assistance and to ensure that more traffickers are convicted.

These are among the main proposals for action included in the latest evaluation of the UK’s implementation of the Council of Europe’s anti-trafficking convention, published today by the Group of Experts on Action against Trafficking in Human Beings (GRETA).

The report notes that the number of possible victims of trafficking referred to UK’s National Referral Mechanism (NRM) rose from 1,182 in 2012 to 10,613 last year. In 2019, over two-thirds of the potential victims were male and 27% were UK nationals. The number of children referred to the NRM almost quadrupled between 2016 and 2020, rising from 1,279 to 4,946.

The report welcomes the UK authorities’ efforts to establish specialised anti-trafficking bodies and their active involvement in international efforts to tackle human trafficking. It also highlights the “Child House” scheme as a good example of child-friendly justice that should be further developed.

https://urlchill.com/pJxRV

Psychosis Cases Soar in England as Pandemic Hits Mental Health

Cases of psychosis have soared over the past two years in England as an increasing number of people experience hallucinations and delusional thinking amid the stresses of the Covid-19 pandemic. There was a 75% increase in the number of people referred to mental health services for their first suspected episode of psychosis between April 2019 and April 2021, NHS data shows The rise continued throughout the summer, with 12,655 referred in July 2021, up 53% from 8,252 in July 2019. Much of the increase has been seen over the last year, after the first national lockdown, according to data analysed by the charity Rethink Mental Illness (RMI). More than 13,000 referrals were made in May 2021, a 70% rise on the May before when there were 7,813 referrals. RMI is urging the government to invest more in early intervention for psychosis to prevent further deterioration in people’s mental health from which it could take them years to recover. It says the statistics provide some of the first concrete evidence to indicate the significant levels of distress experienced across the population during the pandemic.

Read more: Helen Pidd, Guardian, https://is.gd/OupZse