Ministers Accused of Unlawfully Denying Afghan Journalists UK Visas

Ministers have unlawfully “turned their back” on former BBC journalists whose lives are at risk from the Taliban by refusing to relocate them from Afghanistan to the UK, the high court has heard.

Eight Afghan journalists, who worked in high-profile roles for the BBC and other media agencies in the country from which British troops withdrew last year, are challenging the decision to deny them UK visas.

Adam Straw KC, acting for the claimants at Thursday’s hearing in London, said they and their families were at “high risk” of being killed because of their work, which supported the UK government.

Straw said despite assurances by the then foreign secretary, Dominic Raab, that journalists would be protected, “the defendants [the defence secretary, Ben Wallace, and the home secretary, Suella Braverman], have turned their back on the claimants”.

He told the court that Wallace had initially failed to provide reasons for the rejection of the claimants’ applications, under the Afghan relocations and assistance policy (“Arap”), which was in itself unlawful as it made it impossible to challenge the grounds.

Read more: Haroon Siddique, Guardian, https://rb.gy/bp4wgn

Only 0.3% Of Channel Migrants ‘Arrive Illegally’

Fewer than 100 people who crossed the English Channel in small boats have been arrested for arriving illegally in the UK under a new power to deter them.

The figure represents 0.3% of those who have crossed since the law was changed. Under the new law, anyone who arrives in the UK without proper permission or good reason commits a crime that can lead to up to four years in prison. The BBC sought the figure under freedom of information laws after the Home Office declined to disclose it.

A spokesman for the department said there has been a further 180 arrests since the summer under different immigration laws. The new offence of knowingly arriving without permission was part of a package of measures in the Home Office's Nationality and Borders Act, passed earlier this year. Its creation coincided with ministers increasingly referring to illegal migrants crossing the Channel - a claim hotly disputed by refugee groups. They say the term is misleading and fails to acknowledge the complex reasons for crossings and the legal right to seek protection.

Read more: Dominic Casciani, https://rb.gy/1fd0tc

Significant Regression in UK’s Protection of Rights of Refugees and Asylum Seekers

The Council of Europe's Commissioner for Human Rights, Dunja Mijatovi?, has released an important and wide-ranging new report on the situation of human rights in the UK following a visit carried out in June and July.

On the overall human rights landscape, the report states: "The Commissioner observes a high level of anxiety among stakeholders about human rights protection in the UK, in view of the significant impact of recent and proposed legislation, an increasingly antagonistic attitude by the UK government towards human rights, and verbal attacks on lawyers and organisations defending human rights. The Commissioner finds that the Bill of Rights Bill, which would repeal and replace the Human Rights Act 1998 (HRA), would weaken human rights protections by encouraging a divergence in interpretations by UK courts and the European Court of Human Rights of rights set out in the European Convention on Human Rights (ECHR), and by limiting the bringing of human rights cases to UK courts. She calls on the UK government to ensure that any further reform of the domestic human rights system leads to a strengthening, rather than a weakening, of protections."

More specifically on asylum and immigration related issues, the report highlights a significant regression in the observance of the UK's international obligations to uphold the human rights of refugees, asylum seekers and migrants.

Read more: Electronic Immigration Network, https://rb.gy/07ga6h

A Guide to Making Fresh Claims

Further submissions or a ‘fresh claim’ is a process for submitting an asylum (or human rights) application where there has been a previous failed claim and all appeal rights have been exhausted. It can be an effective tool for rectifying years of uncertainty for a failed asylum seeker however the approach to making the claim is fairly unique compared to other Home Office applications.

Preparation: The starting point of any fresh claim is the decision of the first Judge (or decision-maker). Any new evidence which is to be submitted will only be considered a fresh claim if it meets two criteria:

1. It has not already been considered and 2.Taken together with the previously considered material it creates a realistic prospect of success. These rules are found at paragraph 353 of the Immigration Rules and further information can be found in the Free Movement training module.

Essentially, what is required is enough evidence that it can be argued there would be a realistic prospect of success upon appeal to the Tribunal. The new evidence can relate to the initial failed application. Such as new mental health evidence that might explain past inconsistencies. It can pertain solely to new events in the country of protection, for example, a person joining a political campaign group or attending protests. It can also relate to developments in a person’s home country or in case law. This is not an extensive list but demonstrates the breadth of new evidence which can be collated.

Read more: Freemovement, https://rb.gy/efp1kj

In September 2022, the Home Office published a new Country Policy and Information Note (CPIN) on blood feuds in Albania. David Neale, legal researcher at Garden Court Chambers, has provided an in-depth review of the publication, which you can read here.

Mr Neale argues the new CPIN on blood feuds is unconvincing. The existing Country Guidance case EH (blood feuds) Albania CG [2012] UKUT 348 (IAC) accepted that sufficiency of protection in the country, including internal relocation, will not always be available.

The new CPIN explicitly argues that there are “very strong grounds supported by cogent evidence” to justify a departure from EH as regards sufficiency of protection. Mr Neale considers the evidence insufficient to provide the strong grounds necessary to depart from the conclusions in EH. He points to substantial evidence that Albania continues to suffer from serious problems with corruption, impunity, and inequitable enforcement of the law.

The CPIN also inadequately reflects the country guidance case law and country background evidence on internal relocation. EH should not be read in isolation, and Mr Neale references other case law that clearly illustrates internal relocation is unlikely to be a realistic option for victims pursued by a sufficiently motivated persecutor (AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC); and BF (Tirana – gay men) Albania CG [2019] UKUT 93 (IAC)).

In his conclusion, Mr Neale writes, “to certify a claim as clearly unfounded based on the materials in the CPIN would, in the circumstances, be manifestly unlawful”.

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

Trafficking Victim Wins Landmark Victory In Salvation Army Data Case

A victim of county lines trafficking has won a landmark victory in the high court securing new protections against the Salvation Army handing over confidential information to the Home Office. The 25-year-old British woman, who cannot be identified, has received compensation from the Home Office and secured a change in the department’s policy relating to the way the Salvation Army, which has a victim care contract with the Home Office to look after and support trafficking victims, shares confidential information about these victims with the Home Office. The victory could help potentially thousands of other trafficking victims.

Ahmed Aydeed, of Duncan Lewis solicitors, who represents the trafficking victim who brought the court case, said: “It is essential that trafficking victims get their support in a trust-based relationship where there is clarity about what information provided by victims may be shared with the home secretary. It could have a profoundly chilling effect upon the willingness of vulnerable victims to engage with support services if they fear of misuse of their private and confidential information. It is shameful that it took our courageous client’s legal challenge to force the home secretary to introduce these safeguards rather than the Salvation Army advocating for change.”

The Salvation Army has supported more than 10,000 adult victims of modern slavery since July 2011. In June 2020 it secured a new five-year contract with government to do this work. Any trafficking victims supported by the Salvation Army whose confidential information has wrongly been shared by the charity with the Home Office could now be in line for compensation payouts.

The woman who brought the legal challenge has received a payout of £5,000 in the case.

Read more: Diane Taylor, Guardian, https://rb.gy/16nedx

A Tiered Asylum System, Restricting Entry to the UK, and Failing “Legal” Routes

Over the last few days refugees have hit the headlines once again. Amongst other things, there has been talks of a two-tier asylum system, and it was reported that the Home Office’s Afghan citizens’ resettlement scheme (ACRS) has not yet accepted and evacuated anyone from Afghanistan. Suella Braverman’s forward to a controversial report that threatens collective responsibility and human rights was also published yesterday. But is there anything new that can be taken from all this press?

A two-tiered asylum system: fast-track processing. Announced in The Times on Saturday were the government’s latest plans to clear the asylum backlog: a two-tiered asylum system. Those entering the UK via the Channel, having travelled from war-torn countries such as Afghanistan and Syria, would have their claims fast-tracked. There would no longer be a requirement for caseworkers to carry out follow-up interviews and assessments after the initial security and identity checks were complete.

A thorough and successful decision-making process for all asylum claims does not (and indeed should not) require the same amount of time in all cases. A rapid, affirmative asylum process could be used for those from countries with very high asylum success rates, such as Syria, Afghanistan and Eritrea, all with a 98% success rate over the last year according to the latest stats. Once nationality is established, so too would be asylum.

Read more: Freemovement, https://rb.gy/uezy9r

54 Week Waiting Time For Asylum Appeals And 26,000 Cases Outstanding

The tribunal quarterly statistics for the period July to September 2022 show that waiting times for appeals have increased, but the number of new cases entering the tribunals continues to decrease. The number of cases being decided has also increased.

The statistics show that the average time to clear all types of appeals in the First-tier tribunal is 41 weeks. There is a 54-week waiting time for asylum appeals. Waiting times were around six months for asylum appeals before the pandemic, so the increase is significant. But this is still incomparable to the current waiting times for asylum decisions in the Home Office, which have become a matter of years. You can read more about the Home Office’s quarterly statistics and their effect here.

Human rights appeals have an average waiting time of 51 weeks. And EEA free movement/EU Settlement Scheme appeals are taking 37 weeks. There is a worrying average waiting time of 39 weeks for appeals from individuals in immigration detention to be decided.

Read more: Freemovement, https://rb.gy/q5zvrh

Human Rights Damages Can be Awarded For Judicial Findings

I missed this at the time and only saw it thanks to Joshua Rosenberg’s helpful Substack. SW v United Kingdom (App no. 87/18) was about a judge making adverse findings about a social worker and referring her to her professional body without giving her a chance to respond. The Human Rights Act 1998 currently prevents awards of compensation in such circumstances (section 9(3)) but Strasbourg held this was denial of an effective remedy and awarded compensation. It seems potentially relevant on Hamid hearings and on treatment of experts – although the latter is much less of an issue than in the past.

This was one of only two cases the UK lost in Strasbourg in the last year. The other was a freedom of expression case.

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

Female genital mutilation (FGM): Bad-Faith Actors and Unintended Consequences

Georgia Fineberg, Transparency Project: Female genital mutilation (FGM) is a procedure performed on women and girls to injure or change their genitalia. The operation has no medical benefits and causes significant emotional trauma and distress to the victim. FGM compromises women’s and girls’ physical health, increases the risk of infection, prolonged chronic pain, infertility, complications during childbirth, increased risk of HIV transmission, and even death. Some forms of FGM result in women being unable to derive pleasure from sexual intercourse, or sexual intercourse being extremely painful. FGM is practised for a range of reasons across countries and cultures. It is sometimes practised because it is believed necessary to ensure a future marriage or uphold a family’s “honour”. Although no religious scriptures require it, some cite religious grounds in advocating for FGM.

The common denominator is that FGM occurs in cultural settings where gender inequality is deeply entrenched. Consequently, FGM is often but one of the many mechanisms through which women’s sexuality and bodily autonomy are curbed and regulated. FGM is one of the core strands of violence against women and girls (VAWG) recognised by the United Nations, which also includes domestic abuse; forced marriage; so-called honour-based violence; rape and sexual offences; prostitution; human trafficking; child abuse; and the production of child sexual exploitation imagery and footage. A 2008 UN interagency statement defined FGM as a violation of human rights, a form of discrimination based on gender, and a form of violence against girls (WHO,2008).

The total number of women and girls who have been subjected to FGM worldwide is unknown. However, it is understood by UNICEF that at least 200 million girls and women aged 15-49 from 31 countries have undergone FGM. While there has been much progress in eradicating the practice, in some countries, FGM remains commonplace. For example, over 90 per cent of women and girls in Guinea and Somalia undergo some form of FGM (UNICEF global databases, 2022).

FGM also occurs in the UK, where it is estimated that approximately 60,000 girls aged 0-14 were born in England and Wales to mothers who had undergone FGM (Macfarlane A, Dorkenoo E, 2015). UK communities most at risk of FGM include Kenyan, Somali, Sudanese, Sierra Leonean, Egyptian, Nigerian, and Eritrean. Non-African communities that practise FGM include Yemeni, Afghani, Kurdish, Indonesian and Pakistani.

Read more: Georgia Fineberg, Transparency Project:https://rb.gy/sdip0z