Home Office’s NRPF Policy Found Unlawful For The Third Time In as Many Years

On 20 June 2022, the High Court upheld an application for judicial review brought by a mother and her two British children against the Home Office’s ‘No Recourse To Public Funds’ NRPF policy on the basis that it still fails to comply with the legal obligation to safeguard and promote the welfare of children. The ‘No Recourse To Public Funds’ policy was introduced in 2012 as part of the ‘hostile environment’, and has led to thousands of children growing up in abject poverty, because their non-British parents are denied the same state support that other low-income families can claim.

The policy has now been found to be unlawful five times: In 2014, it was declared unlawful because it was not authorised by the Immigration Rules and did not comply with the Public Sector Equality Duty. In 2018, shortly before trial in another case, the Home Office conceded as part of the settlement that a Public Sector Equality Duty compliant review of the policy needed to be undertaken. In May 2020, the Divisional Court declared the policy unlawful because, in breach of Article 3 ECHR and the common law of humanity, it required people to become destitute before they could apply to have recourse to public funds. In April 2021, the Divisional Court declared the Immigration Rule (GEN 1.11A) and associated guidance unlawful because it failed to comply with the duty under section 55 Borders, Citizenship & Immigration Act 2009 to safeguard and promote the welfare of children.

On each occasion the Home Office changed its policy in response to the judgments, but the substance of it remained in place. It is still unlawful. The High Court has today found that the Home Office’s guidance still fails to comply with the section 55 duty, as it still focuses on applicants proving their destitution rather than looking at the impact that lack of recourse has on their children in and of itself.

Source: Deoghton Pierce Glynn, https://rb.gy/a7kzux

This week is Refugee Week. On Free Movement we try to communicate complex legal issues in immigration and asylum law in a clear way. Here we answer the question “what is a refugee?” We answer the question from a lawyer’s point of view. We are lawyers, after all. But lawyers do not own the word “refugee”. The term has been in use since the eighteenth century and has its own evocative, wider meaning in the public consciousness. Those fleeing Ukraine or relocating to the United Kingdom from Hong Kong can validly be referred to as “refugees”, for example, even if they are not formally recognised as refugees, might not even qualify for refugee status and might not describe themselves as refugees.

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

Afghan Resettlement Schemes Belatedly Due to Launch

Whilst many of us were focused on the Rwanda flight, injunction applications and subsequent appeals, the government on 13 June 2022 made some further announcements about the long-delayed Afghan Citizenship Resettlement Scheme. The glacial pace of progress for the Afghan schemes might be contrasted by a cynic with the rapid progress of the Rwanda deal.

Pathway 1 is effectively a catch-all for those who were evacuated last August 2021 and who did not qualify for leave under the previous Afghan Relocations and Assistance Policy but were allocated places under the new scheme.

Pathway 2 is the referral route through UNHCR. No-one can apply as such under this route; people just have to live in a refugee camp and hope they get selected for resettlement.

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

Second Legal Challenge to Immigration Exemption in Data Protection Act 2018

Campaigners have been granted permission to proceed to a full hearing by the High Court in relation to a second legal challenge of the Immigration Exemption. The “immigration exemption”, in the Data Protection Act 2018, was ruled unlawful by the Court of Appeal in June 2021 following a challenge brought by Open Rights Group and the3million.

The exemption, in Schedule 2 of the Data Protection Act, has been used by the Home Office and private companies working to control immigration to refuse requests by individuals for access to personal data held about them on the grounds that it might “prejudice the maintenance of effective immigration control”. Precisely how widespread the usage of the exemption is remains unclear.

Judges gave the government until 31 January 2022 to correct the defects in the exemption. They said in their ruling that it did not meet the safeguarding requirements for exemptions listed in General Data Protection Regulations (GDPR). On 26 January 2022 the government laid a statutory instrument to amend the immigration exemption which it claimed remedied the defects.

However, Open Rights Group (ORG) and the3million, which represents EU citizens living in the UK, claim that the exemption is still unlawful and have applied for a second judicial review of the policy, in the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022.

Read more: Leigh Day solicitors, https://rb.gy/mh3zjl

Blunderbuss’ Public Order Proposals an ‘Unacceptable Threat’ To the Right To Protest

MPs and peers damned the government’s draft Public Order Bill as posing ‘an unacceptable threat to the fundamental right to engage in peaceful protest’. The joint committee on human rights argues that the proposals go beyond the ‘stated intention behind the Bill is to strengthen police powers to tackle dangerous and highly disruptive protest tactics’.

The Bill proposes new offences including ‘locking on and being equipped to lock on’ (i.e., attaching oneself to something to prevent removal), obstructing major transport works such as airports and motorways; and interfering with key national infrastructure. ‘Each of these offences has a very wide scope, and risks criminalising individuals legitimately exercising their Article 10 and 11 rights,’ the report says. ‘They also unnecessarily place the burden of proving that actions were reasonable on to the defendant, which appears inconsistent with the presumption of innocence and the right to a fair trial guaranteed by Article 6 ECHR. These offences all need amendment to ensure they are not incompatible with Convention rights.’

Read more: Jon Robins, Justice Gap, https://rb.gy/gvezzm

Supreme Court Allows Foreign Criminal Deportation Case

The Supreme Court has allowed the appeal against the deportation of a Jamaican man who arrived in the UK aged 10. The case is SC (Jamaica) v Secretary of State of the Home Department [2022] UKSC 15. The judgment covers the application of the concept of internal relocation to risk of breaches of Article 3 of the European Convention on Human Rights and the proper approach to the statutory deportation rules on Article 8 private and family life introduced by the Immigration Act 2014.

Read more: Freemovement, https://rb.gy/xgu0us

Foreign Convictions in Deportation Appeals

When the Home Office is deporting someone for being convicted of a criminal offence, does it matter what country that conviction is from? In practice, probably not. This seems to be the effect of the Court of Appeal’s decision in Gosturani v Secretary of State for the Home Department [2022] EWCA Civ 779. This is because the public interest in deportation remains the same, regardless of whether the conviction is from the UK or abroad.

When is a foreign criminal not a foreign criminal?

The definitions of “foreign criminal” in section 32 of the UK Borders Act 2007 and Part 5A of the Nationality, Immigration and Asylum Act 2002 both refer to conviction in the UK. This means that someone who has been convicted of a criminal offence abroad is not a “foreign criminal” as that term is understood in deportation law. This was confirmed by the Upper Tribunal in SC (paras A398 – 339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC) (see Free Movement write-up here).

Read more: Freemovement, https://rb.gy/ecu5cw