IRR Calendar of Racism and Resistance (17 – 31 January 2022)

Tough new rules have came into force under the Nationality and Borders Act, potentially denying ‘foreign criminals’ sentenced to over 12 months access to modern slavery protections. At the same time, amendments made to the online safety bill will, if passed, lead to the criminalisation of social media companies that show online videos of Channel crossings in a ‘positive light’.

But when it comes to the ‘hostile environment’, it’s not just primary legislation we should be concerned about. As we report in this week’s calendar of racism and resistance, the hostile environment also grows through incremental measures, Kafkaesque bureaucracy, and other dubious practices, both official and unofficial. A new Home Office taskforce is set up to intensify controls and checks in banks, schools and the NHS.

Yet this government department is unable to provide basic safeguards for asylum-seeking children, with hundreds disappearing from Home Office hotels. It is only thanks to the vigilance of journalists and campaigners that this has come to light. Thanks to them we know about other practices and acts of institutional neglect that are taking place under the radar, such as the failure to communicate successful asylum decisions to those living in Home Office hotel accommodation, or to provide medical and vaccine records to Tower Hamlets GPs seeking to provide care for asylum seekers dispersed from Manston.

If, as Desmond Tutu once said, ‘the price of freedom is eternal vigilance’, campaigners in the north of Ireland have shown they are alert to immediate dangers, mobilising this time against more primary legislation currently going through the UK parliament. The Northern Ireland Troubles (Legacy and Reconciliation) Bill, if passed, will stop virtually all further conflict-related criminal and civil cases, inquests and independent investigations. Professor Mark McGovern provides a timely analysis of ‘Legacy, truth and collusion in the North of Ireland’, in the current Race & Class. It should be read alongside Frances Webber’s earlier analysis of the Overseas Operations Act 2021 and Covert Human Intelligence Sources (Criminal Conduct) Act 2021.

Read the Calendar of Racism and Resistance - https://rb.gy/kg5rfi

Reform The Immigration System: Shorten Key Immigration Routes

The Home Office is not beloved as an institution. Some consider it necessary. But no-one likes it. That seems to include not just migrants and their families but also many of the civil servants at the Home Office itself, the lawyers and judges who interact with the Home Office and the numerous Home Secretaries whose careers have been derailed by their time at the Home Office.

So, I have a modest proposal for reforming the immigration system: reduce the contact that people have to have with the Home Office. Do this by shortening the time it takes to achieve settlement on key immigration routes.

Every contact, or interaction, a person has with the Home Office is very stressful and very expensive. Applications cost a fortune. The process of applying is emotionally draining and frustrating, particularly when the risk of refusal, however tiny, is taken into account. Decisions take months. This all makes yet more work for civil servants who, quite frankly, have more important things to do. And yet the vast majority of these applications are successful, meaning the work done on them is basically a waste of time.

This would be an easy win that simultaneously promotes integration and reduces non-essential Home Office workload.

Read more: Freemovement, https://rb.gy/wv3def

Windrush Report: Suella Braverman Scraps Three Recommendations

The head of the Windrush inquiry has expressed disappointment after the home secretary confirmed the government was dropping three key commitments made in the wake of the scandal. Suella Braverman told MPs she would not proceed with the changes, including establishing a migrants' commissioner. They were put forward in the scathing report into the wrongful deportation of UK citizens of Caribbean descent. Wendy Williams said "crucial" recommendations had been scrapped.
In a written statement in the House of Commons, Ms Braverman insisted the Home Office was looking to "shift culture and subject ourselves to scrutiny".

But she confirmed that plans to beef up the powers of the immigration watchdog; set up a new national migrants advocate; and run reconciliation events with Windrush families would be axed, despite the Home Office originally endorsing them after the report's publication.

Read more: BBC News, https://rb.gy/a7wdm9

False Identity Documents – NRM – Guilty Pleas

R v BXR [2022] EWCA Crim 1483 By Tayyiba Bajwa

BXR appealed against conviction. He was a Nigerian who had entered the UK in 2007 on a visitor visa. He overstayed and started working in a factory in 2012 having used a false passport with a false stamp indicating he had been granted indefinite leave to remain. BXR pleaded guilty to two counts of possession of a false identity document with an improper intention, one count of fraud, and one of illegal working. He was sentenced in May 2017 to nine months’ imprisonment.

In 2019 he was referred through the National Referral Mechanism and, on 29 October 2021, he received a positive conclusive grounds decision. He had been the subject of attacks in Nigeria which caused him to flee to Lagos. In Lagos, he had worked for a man (CD) who forced him to have sex with men, forced him to agree to a “Covenant” which included ritualistic elements, and then arranged his travel to the UK. Upon arrival in the UK, he was taken to a house where his movements were restricted, he was forced to have sex and take drugs, and was told he owed CD a large sum of money and couldn’t leave the house until the debt was repaid. He escaped and became homeless whereupon he was taken in by a preacher, who offered him accommodation and work

if he underwent gay conversion therapy. The preacher gave him the photocopy of the passport used to gain employment; BXR never had access to the actual passport. For the first few years of his employment, he received no wages directly but was given a weekly cash stipend of a very small amount. In 2020, the First-tier Tribunal accepted he had been trafficked and allowed his appeal against the refusal of asylum. There was evidence from a clinical psychologist that he had PTSD and presented credibly as a survivor of persecution and trafficking.
He appealed against conviction on the basis that his legal advisers should have been on notice that he had been trafficked and, had the CPS known the reality of his situation, he might not have been prosecuted. The offences were all complete before the defence pursuant to s.45 Modern Slavery Act 2015 came into force.

The CACD allowed the appeal.

There were not circumstances sufficient to put the legal advisers on notice of the trafficking issue. However, the absence of fault by the legal advisers did not bar the allowing of the appeal (see, e.g. R v O [2011] EWCA Crim 2226 at §10).

Referencing the relevant CPS guidance in force at the time, the CACD observed the importance of the nexus between the offending and the trafficking and noted that other factors which engage the public interest are the gravity of the offence and alternatives reasonably open to the Defendant.
In this case, the CACD heard evidence from BXR and accepted his account of events, noting that while there were discrepancies and inconsistencies in his account, they were “readily explicable by the effect which the unchallenged trafficking and PTSD would have had, in conjunction with his cognitive difficulties” and they accepted his account as truthful.
The CACD found there had been a direct link between the trafficking and the offending and that he had experienced a high degree of compulsion due to his cognitive difficulties, his trafficking background, and his well-founded fear of persecution should he have to return to Nigeria. Had the prosecution known the true position and applied the 2013 guidance, it would very likely not have prosecuted him. Convictions quashed.

Comment: This decision confirms that there is no requirement that the original advisers (or prosecution or court) need have erred in failing to observe the indicators of trafficking for there to be a successful appeal against conviction.

That the Appellant gave oral evidence in his appeal appears consistent with the CACD’s observation, in R v AAD [2022] EWCA Crim 106, that there may be appeals where oral evidence will not be required but where “the suggested trafficking is based...on unsatisfactory and untested hearsay evidence from the appellant, the court may express the view that it would be preferable for the appellant to give evidence” [§108].

It is significant that the CACD recognised that discrepancies and inconsistencies in evidence will not in and of themselves invalidate an account of trafficking particularly when taken against a backdrop of exploitation and demonstrated cognitive difficulties confirmed by the expert evidence of a psychologist and self-evident in the Appellant’s own evidence.

Source: Doughty Street Chambers, https://www.doughtystreet.co.uk/

Hold off all action- Kouame will not fly Today!

We have just heard that Kouame's flight has been cancelled pending consideration of further evidence. Kouame will not be forcibly removed.

Please hold off all action for now, and we will keep you updated.

Thank you for everyone's hard work and support.

It has meant so much to Kouame, and everyone at RAPAR.

Keep Kouame Safe - No to Forced Deportations - Very Urgent Deadline Friday Afternoon

Please support RAPAR’s campaign for our friend and member Kouame, a political activist from Ivory Coast who faces grave danger if he is forcibly removed to there. Kouame was recently detained at a Home Office Reporting Centre in Greater Manchester. He was taken to Dungavel House, Scotland, and he is now back in Manchester, in detention. We understand that he will be moved to Colnbroook, London, on Tues. the 31st before his removal flight to Ivory Coast with Royal Air Maroc, which is booked from London Heathrow to Ivory Coast, via Casablanca, on Friday 3rd February at 5.10pm British time.

To read his story, visit the 'Keep Kouame Safe' page on the RAPAR website.
http://www.rapar.co.uk/keep-kouame-safe-uk.html

?Kouame’s forcible removal is booked on Royal Air Maroc flight AT801, London Heathrow to Casablanca at 5.10pm British time on Friday 3rd February, and then from Casablanca, Flight AT533, to Abidjan.

How You Can Help

1. Tweet, email and/ or call Chief Executive of Royal Air Maroc Abdelhamid Addou, the UK General Manager Achraf El Hassan, and Royal Air Maroc.

* If you can do only one thing, please do this. Forcible removals have been stopped before with this intervention. ?

Ask them if they are aware that their airline is being used (details above) to undermine human rights? Why they are enabling the Home Office to send a political activist back to a country where his life would be in danger? Why they are prepared to cause distress to other passengers who will have to share the flight with someone who is being forcibly removed from the UK?

Twitter @RAM_Maroc; email callcenter@royalairmaroc.com CEO, UK general manager, and airline

Airline and UK manager address and number:
Royal Air Maroc, 32-33 Gosfield Street, London WIW 6ED, 020 7307 5800

Download a model/ template for letter/ email Royal Air Maroc here:
https://rb.gy/lanom3

Please CC admin@rapar.org.uk into any emails.

2. Email, tweet and phone BALPA - The British Airline Pilots’ Association

To tell them that that someone is being forcibly removed from the UK on one of their flights (details above).

Phone 020 8476 4000; twitter @BALPApilots; and email balpa@balpa.org

Download a model/ template for letter email to BALPA here: https://rb.gy/mhvozq

Please CC admin@rapar.org.uk into any emails.

3. Before he was detained, Kouame was made homeless by the Government’s hostile environment policies and was given accommodation in Salford through the A Bed Every Night scheme (Aben) backed by Greater Manchester Mayor Andy Burnham and Salford City Mayor Paul Dennett who holds the portfolio for Homelessness in the Greater Manchester Combined Authority.

Please CC admin@rapar.org.uk into any emails.

Please Do What You Can, Thank You

Maternity Care for Refugees, Asylum Seekers and Undocumented Migrants

Disrupted by Hostile Environment Policies

An academic report from October that was published last week looks at the experiences of pregnant refugees, asylum seekers and undocumented migrants in the London borough of Camden accessing maternal health care in a hostile environment.

The report identifies three main hostile environment policies which negatively affect the access of maternal health care: the NHS charging regulations, the asylum dispersal policy, and information sharing between the NHS and the Home Office. In addition, many other hostile environment policies had an indirect effect on access and quality of maternal care.

Read more: EIN, https://rb.gy/4yep6s

Ethiopia’s Forgotten War Deadliest of the 21st Century 600,000 Civilian Deaths

The civil war in Ethiopia has resulted in the death of some 600,000 civilians, a staggering estimate for a conflict that has lasted only two years and has been focused on a single region, Tigray, of around six million inhabitants. However, in the absence of official counts, the calculations of the European Union, international organizations and experts concur on a devastating mortality rate in a war the Ethiopian government has deliberately tried to shield from international public opinion. The first to put these figures on the table was Jan Nyssen, professor emeritus of geography at the University of Ghent in Belgium. “Hunger was used as a weapon of war,” he says.

The conflict erupted in 2020 when Prime Minister Abiy Ahmed Ali declared war on the Tigray People’s Liberation Front, which had dared to challenge the government’s authority from the northernmost region of the country. Violence quickly spread as Amhara militias and Eritrean troops joined the side of the Ethiopian government. Bloody battled ensued, as did bombardments and massacres documented by the United Nations, and a blockade of Tigray that prevented humanitarian aid from getting in and information and residents from getting out.

Read more: El Pais, https://rb.gy/ljzgkk

Identifying Litigation Friends for Vulnerable Migrants

A person who lacks the requisite mental capacity to litigate in the tribunal or courts requires what is called a ‘litigation friend’ to conduct proceedings on their behalf. The role of a litigation friend is crucial in ensuring that individuals with mental health disabilities are able to participate effectively in litigation and therefore, access the courts.

In the immigration tribunals context, the power to appoint a litigation friend for litigants who lack litigation capacity has been clearly established since the case of R (C ) v FTT and others [2016] EWHC 707 and of AM (Afghanistan) v SSHD [2017] EWCA Civ 1123.

However, while the power to appoint a litigation friend is clear, there is significant difficulties in identifying and securing a litigation friends to act on behalf of vulnerable migrants and asylum seekers who lack litigation capacity. Many migrants and asylum seekers often do not have significant support network in the UK including friends or families who would be able to step into the role of a litigation friend. Without one, proceedings would not be able to proceed fairly.

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

Source: Doughty Street Chambers, https://www.doughtystreet.co.uk/

False Identity Documents – Guilty Pleas

BYA [2022] EWCA Crim 1326

BYA applied for leave to appeal against her conviction from 2009. She had pleaded guilty to an offence of possession of a false identity document with intent, contrary to section 25(1)(c) Identity Cards Act 2006, and she was sentenced to 12 months immediate imprisonment. Her application was approximately 10 years and 10 months out of time.

It was submitted that BYA entered a plea without her status as a potential credible victim of trafficking being explored; and in fact, this had been ‘ignored or overlooked’ by the police and CPS [44]. Had the CPS been aware of the BYA’s history, either the dominant force of compulsion was sufficient to reduce her culpability to a point where it was not in the public interest for her to be prosecuted, or she would or might well have not been prosecuted in the public interest [44]. BYA sought to rely on fresh evidence consisting of evidence and decisions from the Competent Authority, First-tier Tribunal (‘FTT’) and Upper Tribunal (‘UT’) supporting that she was a victim of trafficking [45].

The CACD were satisfied that it was “necessary” to admit the new evidence [43]. Further, that the case fell within the categories of when it was possible to appeal a guilty plea as set out in R v T [2022] EWCA Crim 108 and R v AAD [2022] EWCA Crim 106 [43].

Notwithstanding BYA’s guilty plea, the CACD found that the conviction was unsafe, and quashed it, on the basis that: (a) She was a victim of trafficking by virtue of the debt bondage into which she was placed, which resulted in sexual exploitation, forced prostitution, and being re-trafficked to other countries [48-50]; (b) The offence was committed in the course of her forced prostitution and was a consequence of it [51]; (c) There was a strong nexus between the crime and the trafficking which considerably diminished BYA’s culpability, with the compulsion arising ‘directly from her trafficked circumstances and not just the trafficking’ [52-54]; (d) It was open to them to consider the public interest question without trespassing on territory already appropriately considered by the prosecuting authority [55]; (e) Had the CPS known about her status as a victim of trafficking in 2009, the CPS ‘would or might well’ have not prosecuted her because her criminality, or culpability, was significantly diminished, and the public interest did not require a prosecution of this particular offence on the facts of the case [56]; (f) Leave to appeal out of time should be granted as the conviction was secured in an inadvertent breach of international law protections that should have been afforded to BYA [57].

Comment: While the approach taken by the CACD is consistent with the previous authorities, this decision highlights two important points. First, the need to take a proactive approach to identifying possible credible victims of trafficking. Indicators of trafficking should be explored, including by way of a referral to the National Referral Mechanism, at the earliest opportunity by all parties. Second, the CACD will intervene and determine the public interest question if it has not already appropriately been considered by the CPS. Where the CPS has given careful consideration to this, and there is no new evidence or evidence that would change their decision on appeal, it is unlikely that the CACD will intervene and redetermine this question.

This summary By Peta-Louise Bagott

Source: Doughty Street Chambers, https://www.doughtystreet.co.uk/