UNHCR Expresses Concern Over Home Secretary-Backed Asylum Report

A report partially backed by the UK Home Secretary, Suella Braverman, was a cause of deep concern for the UNHCR office yesterday. The report, published by the Centre for Policy Studies (‘CPS’), endorsed a ‘radical crackdown’ on refugee asylum seekers, which the UNHCR has strongly criticized as having many “factual and legal errors.” Braverman wrote the foreword to the report, describing the study as a ‘vital and necessary contribution to the policy debate about what can be done to tackle the crossings’.

The UNCHR expressed deep concern over the CPS’s calls for indefinite detention of all asylum seekers that enter the UK without prior legal permission to do so. A statement issued by the UN Refugee Commissioner was highly critical of the stance that the CPS chose to take, especially regarding the ‘hard-liner’ proposals that it would entail towards the UK asylum system.

The 115-page CPS report was authored by Nick Timothy a former member of the Downing Street Chief of Chief during Theresa May’s premiership. The ‘hard-liner’ proposals in the report included: indefinite detention of all asylum seekers who enter the UK illegally; rapid offshoring to Rwanda for all asylum seekers who enter the UK illegally; new laws that would make it virtually impossible to claim asylum in the UK after travelling from a safe country; as well as effectible barring migrants who enter the country illegally from ever settling in Britain.

The report also recommended that domestic human rights laws be reformed to allow for detention and offshoring – including, if necessary, Britain’s withdrawal from the European Convention of Human Rights. Reforms to Modern Slavery Act-related claims, tightening the criteria and evidential thresholds available, were additional steps proposed by the report to limit appeals and allow exclusions for whole nationalities where there is alleged to be widespread abuse of the asylum system.

In comments supplementing the report, Timothy said ‘if human rights law prevents us from taking that approach and securing our borders, we must be prepared to change those laws and if necessary, leave the ECHR altogether.’

The UNCHR responded to Timothy’s statements, reaffirming that everyone has the right to seek asylum from persecution in another a country, and that the report is factually incorrect because ‘there is no such thing as an ‘illegal asylum-seeker.’

Joyce Claudia Choo, Justice Gap, https://rb.gy/d0calz

The European Commission’s action plan on the Central Mediterranean, proposed on November 21, 2022 and endorsed by home affairs ministers a few days later, is another missed opportunity for the European Union to reset its myopic and harmful policies on this crucial migration route. The plan recycles the same repressive and ineffective focus on stopping people from entering Europe by increasing funding and support to often abusive governments in North Africa.

The plan doubles down on strengthening Libya’s capacity to police its borders. Support for the Libyan Coast Guard already facilitates interceptions of migrants at sea and their return to Libya where they face arbitrary detention and horrific abuses. The EU cynically justifies this support as part of the fight against smugglers and traffickers, despite knowing that the United Nations has pointed to evidence of collusion between the Libyan Coast Guard and traffickers and smugglers “attempting to profit from this system.”

The new plan ignores recommendations to re-introduce state-led, proactive search and rescue operations under the auspices of the EU and to establish a clear mechanism for predictable disembarkation in a place of safety of people rescued in the Central Mediterranean. The plan also fails to incorporate a process for relocation of people to other EU countries, to share responsibility and alleviate the pressure on the country of disembarkation.

Instead of dealing with EU member states’ refusals to undertake and coordinate the rescue of migrant boats in distress and to allocate safe places of safety to ships operated by nongovernmental rescue groups, the European Commission continues to constrain these organizations’ life-saving work at sea, referring to an alleged “need for a specific framework and guidelines for vessels.”

Giulia Tranchina, Human Rights Watch, https://rb.gy/rywoz1

Frontex, Pushbacks and the Failure to Protect the Right to Claim Asylum in Greece

Across Europe, asylum seekers and displaced people are facing growing hostility as they look to start new lives escaping war and persecution. In Greece, there is continually mounting evidence of “pushbacks” to which Frontex, the European Border and Coast Guard Agency, have been shown to be turning a blind eye. Frontex claims these are “practices of the past”. We share evidence here that these practices are very much ongoing and as dangerous as ever. This post focuses on pushbacks and border violence in Greece and specifically on the island of Samos – an external border of the EU only a mile from the Turkish coast – where both authors have worked. We explain why this led to humanitarian organisations on Samos demanding that Frontex upholds fundamental human rights, including the right to claim asylum, or ends its operations in Greece altogether.

From our experience in Samos, and in Greece in general, the legal, political and humanitarian realities faced in this particular borderscape are highly relevant to discussions of the UK’s hostile environment. Many of the people who make the dangerous crossing to the UK will have faced equally dangerous and violent border crossings before, finding themselves stuck in overcrowded unsanitary camps, forced to stay in informal shelters, violently pushed back, dehumanised and made vulnerable by hostile environments and the proactive policy choices of individuals, states and the organs of the EU.

Read more: Fremovement, https://rb.gy/yyqije

Special Advocates Acting in Closed Hearings Require More Support

The delayed Independent report on the operations of closed material procedure under the Justice and Security Act 2013 has now been published. Sir Duncan Ouseley, the retired Judge that conducted the review, stated that support for special advocates was a “major issue”. Special advocates are appointed to deal with closed material procedure in civil proceedings that are heard without press or public presence. These hearings are conducted in this way to avoid disclosing material that has the potential to damage national security.
The claimants themselves are also excluded from these hearings, so the appointment and support of appropriate representatives, and the appropriate number of representatives, is particularly important. Sufficient support, according to Ouseley, includes premises, training, equipment, staff, and access to a library of closed judgments. These should all be on equal terms with what counsel for the government have access to. The resources in Northern Ireland apparently need addressing most urgently. The support needed will require an influx of cash and in general, it should be expected that closed cases are more expensive than conventional litigation.

The report also highlights that a significant number of cases settle. There have been concerns from advocates that this was not the point of the process of private hearings being set up. However, it is more likely that settlement was reached on “a sounder basis with the closed material procedure than would have been the case if there had been no such procedure, and the defendant had been unable to defend the case or the claimant unable to proceed with it, save for whatever public interest immunity might have forced into evidence. The cases are brought, defended or conceded on a more informed and considered basis”.

A few procedural changes were also suggested in the report. These include serving a draft closed defence; increasing the special advocate’s role in mediation; the ability for the court to require closed pleadings and grounds of challenge supplementary to the open submissions; and the addition of parties solely in closed proceedings. A database of closed judgments is also recommended. With additional financial support and organisation, Ouseley suggests that there should be no need for successive reviews of this kind.

Source Fremovement, https://rb.gy/spjhhh

Continuing Conflicts That Create Refugees - December 2022

Deteriorated Situations: Eswatini, Türkiye, Pakistan Ecuador, Israel/Palestine, Lebanon

Conflict Risk Alerts Yemen, Syria
In Yemen, back-channel talks between the Huthis and Saudi Arabia could lead to a deal, albeit one that excludes the government and UN special envoy. Front-line skirmishes and Huthi threats against energy facilities could portend further escalation, including a high-profile regional attack.

Türkiye intensified strikes against Kurdish-led forces in Syria after the deadly Istanbul bombing, threatening a ground offensive in the north that would risk large-scale displacement, civilian casualties and an escalatory cycle of violence.

Serious Conflicts throughout November

Pakistan: Political instability intensified as former Prime Minister Imran Khan blamed the government and intelligence officials for a botched assassination attempt and announced his party’s resignation from provincial legislatures.

Israel-Palestine, dual bus stop bombings rocked Jerusalem as Israel conducted scores of raids in the West Bank, killing at least eighteen Palestinians. Israel’s incoming far-right government could adopt even more destabilising policies.

Ecuador: Violence surged in coastal cities as criminal gangs attacked security forces in response to mass prisoner transfers, prompting a state of emergency in three provinces.

Eswatini: Suspected members of a pro-democracy militant group in launched attacks on officials and public buildings across the country, leaving several dead.

Resolution Opportunities for December: None

Source: International Crisis Group: https://www.crisisgroup.org/crisiswatch

Evacuated Afghan Families Win Permission to Challenge Home Office

A group of families evacuated from Afghanistan last year have been granted permission to proceed with a legal challenge against the home office for mismanaging the scheme set up to support their settlement and integration into UK society.

Last month, a group of families were moved out of London where they had lived for almost a year into an airport hotel in a northern city. The unexpected move resulted in the loss of job offers, training opportunities, school places and the support networks they had built with other families.

The group includes a former soldier who fought alongside British and American forces against the Taliban, and teenage girls who had been welcomed into a school and were engaging positively with their education outside of Afghanistan.

Daniel Rourke, a Public Law Project solicitor for one of the families said:

“As things stand, these families are at risk of repeated changes in temporary accommodation. Each move disrupts their attempts to hold down work, continue education, and integrate into the UK. There is no good reason why they should be relocated in circumstances where they will inevitably be moved again.

“When they have tried to arrange their own accommodation in co-ordination with the Home Office, they have been stonewalled, yet if they do so without Home Office approval, they have been told they will lose a support package in place to help their integration and independence.

“A shocking part of the Home Office’s legal argument is that the Home Secretary does not owe a duty to safeguard and promote the welfare of the children involved. These families were recognised as most in need of help to escape the Taliban. They include people to whom the UK Government has stated it owes a huge debt. They are being treated appallingly.

“What the families need is protection from being moved like this again and an opportunity to find accommodation that they will one day be able to call home. For all that they have been through, and for the sacrifices and risks taken for our country, they deserve better.”

Read more: Deighton Pierce Glynn, https://rb.gy/wol5yu

Persons With Disabilities Risk Dying 20 Years Earlier Than Those With Out

A new report by the World Health Organization shows evidence of a higher risk of premature death and illness among many persons with disabilities compared to others in the society. The Global report on health equity for persons with disabilities published today shows that because of the systemic and persistent health inequities, many persons with disabilities face the risk of dying much earlier---even up to 20 years earlier---than persons without disabilities. They have an increased risk of developing chronic conditions, with up to double the risk of asthma, depression, diabetes, obesity, oral diseases, and stroke. Many of the differences in health outcomes cannot be explained by the underlying health condition or impairment, but by avoidable, unfair and unjust factors.

Launched ahead of the International Day of Persons with Disabilities, the report shows the number of people with significant disabilities worldwide has risen to 1.3 billion (or 1 in 6 people). This numberreinforces the importance of achieving full and effective participation of persons with disabilities in all aspects of society and embedding the principles of inclusion, accessibility and non-discrimination in the health sector.

Unfair factors: a key cause of disparities in health. - The report stresses the need for urgent action to address the vast inequities in health caused by unjust and unfair factors within health systems. These factors---which account for many of the differences in health outcomes between persons with and without disabilities---could take the form of: negative attitudes of healthcare providers, health information in formats that cannot be understood, or difficulties accessing a health centre due to the physical environment, lack of transport or financial barriers.

"Health systems should be alleviating the challenges that people with disabilities face, not adding to them," said WHO Director-General, Dr Tedros Adhanom Ghebreyesus. "This report shines a light on the inequities that people with disabilities face in trying to access the care they need. WHO is committed to supporting countries with the guidance and tools they need to ensure all people with disabilities have access to quality health services." With an estimated 80% of persons with disabilities living in low- and middle-income countries where health services are limited, addressing health inequities could be challenging. Yet even with limited resources, much can be achieved.

Read more: Relief web, https://rb.gy/eyqvj8

What is the Duty of Candour? and to Whom Does it Apply?

The duty applies to both claimants and defendants; that is the individual or organisation challenging a decision and the public authority that made the decision. It also applies to the interested parties. The exact contours of the duty are complex and differ depending on the type of challenge. The duty of candour requires parties to a case to ensure that all relevant information and all material facts are disclosed, even where it includes information that undermines their case.

This post will provide a whistle-stop tour of the duty of candour in judicial review, specifically in the context of immigration law. In the context of judicial review, the duty of candour has a specific meaning. Unlike other types of civil litigation, judicial review does not operate using the normal rules of disclosure of evidence. Rather, both parties – often an individual and the Home Office – are subject to the duty of candour. It is a “self-policing” duty and parties are expected to provide a true explanation of all relevant facts relating to the decision being challenged.

A duty of candour can be owed in other legal contexts. For example, an individual seeking to enter the United Kingdom owes a positive duty of candour on all material facts (see Zamir v Secretary of State for the Home Department, [1980] UKHL 14). Not all immigration cases will be judicial reviews. Many immigration cases in the courts and tribunals are statutory appeals, to which there are specific rules of disclosure (and where the duty of candour in judicial review does not apply).

Read more: Fremovement, https://rb.gy/nvlg5j