Appeals Decided on Paper Under Unlawful COVID-19 Process Must Not be Unfair

Immigration appeals decided without a hearing under the Upper Tribunal’s notorious COVID-19 guidance don’t automatically fall to be set aside, the Court of Appeal has held in Hussain and another v Secretary of State for the Home Department [2022] EWCA Civ 145. In so finding, the court confirmed the reasoning of the Upper Tribunal last year in EP (Albania) & others (rule 34 decisions, setting aside) [2021] UKUT 223 (IAC).

Unlawful guidance on paper appeals
The background to the case was an attempt by the President of the Upper Tribunal (Immigration and Asylum Chamber), Mr Justice Lane, to ensure that work didn’t grind to a halt in the early stages of the pandemic. On 23 March 2020, with in-person hearings suspended and remote ones not yet established, he issued a guidance note on the circumstances in which Upper Tribunal judges could determine cases on the papers – that is, without an oral hearing. A judicial review brought by the Joint Council for the Welfare of Immigrants resulted in a finding by Mr Justice Fordham that the guidance was unlawful because it communicated an “overall paper norm”, risking unfairness.

What, then, should happen to the people whose appeals had been determined on the papers under the guidance note before the decision in JCWI? That was the issue for the Court of Appeal in Hussain.

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In R (SV) v Secretary of State for the Home Department [2022] UKUT 239 (IAC), the Upper Tribunal has held that the European Convention Against Trafficking (ECAT) not being a part of UK domestic law is no reason to refuse to examine the lawfulness of a policy which purports to give effect to ECAT. But the tribunal rejected the specific challenge to the policy in question, which has to do with allowing victims of human trafficking to remain in the UK. The case was about an Albanian citizen, SV, who arrived in the UK in early 2014 and was referred into the National Referral Mechanism. Her claim to be treated as a victim of human trafficking was at first refused, but she eventually received a positive conclusive grounds decision in 2019.

The Home Office initially declined to grant SV permission to stay, but eventually allowed her 12 months’ discretionary leave. She challenged that decision and secured 30 months, but that still fell short of what she wanted: indefinite leave to remain. SV challenged the grant of 30 months’ discretionary leave on three grounds: The discretionary leave policy guidance for victims of modern slavery was unlawful as it was too imprecise; The policy guidance was unlawful as being contrary to ECAT, because it imposes a higher threshold for grants of leave beyond 30 months; The Home Office failed to explain its reasons for rejecting the opinion of SV’s psychiatrist, who had recommended that she get indefinite leave to be treated for complex post-traumatic stress disorder.

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Mandatory GPS Tagging for People on Immigration Bail

Last August, the provisions in Schedule 10 of the Immigration Act 2016 providing for foreign national offenders liable to deportation to be subject to mandatory tagging as a condition of immigration bail were commenced. This provision was designed to implement the 2015 Conservative party manifesto commitment to “introduce satellite tracking for every foreign national offender subject to an outstanding deportation order or deportation proceedings”.

The Home Office has updated its Immigration bail policy to reflect this, with changes most recently made on on 31 January 2022. The new style tags are GPS devices which can track where a person is at any given time. They are fitted on a person’s leg and must be charged daily. People already on bail who are subject to mandatory tagging will be the subject of a review and devices will start to be fitted unless an exemption applies. The policy provides that such people may have devices fitted at reporting centres or at home. A bail condition requiring a person to wear a GPS tag can be combined with restrictions on their movements, including curfews and conditions on where they can go (called inclusion or exclusion zones).

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Article 3 Protects Asylum Seekers Against Removal Even if They Could Leave Voluntarily

Where an individual would be at risk if forcibly returned to a part of his country of nationality, is it a valid answer to a protection claim that he might nevertheless avoid any such risk by returning voluntarily to another part of that country, even where he does not wish to do so? No, says Upper Tribunal Judge Blundell in the case of SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 (IAC). That individual would not be eligible for refugee status, but would be protected by Article 3 of the European Convention on Human Rights (ECHR).

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‘Toxic’ Racism of Home Office’s Immigration Staff Contractor

A whistleblower has revealed racist messages traded on a WhatsApp group run by one of the private companies that runs detention centres and escorts migrants. The source told the Mirror on Sunday about the ‘toxic’ racism of messages in a 120-strong group of staff at the contractor Mitie called ‘escorts meet and greet’ which featured ‘jokes about Syrian refugees swimming to the UK’, ‘slanty-eyed’ Chinese people, a ‘lewd reference’ to Diane Abbott MP and a ‘xenophobic jibe’ at Home Secretary Priti Patel.

‘There is no care. It’s utterly toxic,’ the whistleblower said. ‘Casual racism amongst workers towards those they are supposed to look after is disgusting. Detainee custody officers (DCOs) are acting on behalf of the Home Office – but the reality of how many behave is a joke.’ According to the report, the Home Office has now ordered a probe and points out that Mitie, which has a £525million government contract, has suspended some staff. A subsequent report on the Guardian said that a whistleblower first raised concerns about racism on the WhatsApp group almost two years ago and Mitie told the the paper that the ‘was not escalated in line with internal procedures’ which was ‘not acceptable’. The paper had previously reported on the employment tribunal case of a Mitie escort of Pakistani heritage, Muqaddas Zaibhas, whose case revealed that stafff used the racist term ‘cotton pickers’ to describe black colleagues.

Read more: John Robins, Justice Gap, https://rb.gy/cbi9lk

Falling Foul of Contempt of Court May be Easier Than You Think

Contempt of court is, as Lord Nicholls observed in Attorney General v Punch Ltd [2002] UKHL 50, “the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice”. It protects all courts, and also those tribunals which exercise the judicial power of the state (as opposed to having a purely administrative function).

Although there are two main forms of contempt, criminal and civil, the question of whether contempt is criminal or civil does not follow from the nature of the court or tribunal’s activity but from the nature of the act in question: R v O’Brien [2014] UKSC 23, paragraph 42, per Lord Toulson.

Criminal contempt encompasses conduct which goes beyond simple non-compliance with the order of a court, and constitutes a serious interference with the administration of justice, for instance by physically interfering with the course of a trial, threatening witnesses or publishing material likely to prejudice a fair trial: O’Brien, §39. Such interference can take many forms. Archbold: Criminal Pleading, Evidence and Practice (2022) sets out that criminal contempt may arise from defiance of orders:

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The President of the First-tier Tribunal has put out new guidance on witnesses dialing in to give evidence from abroad. It is decidedly negative, stressing the need to get consent — via the Foreign Office, in a prescribed manner — from the government of the country in question. Even if there is consent, the judge can simply refuse to allow it. Witnesses are strongly encouraged to give evidence in writing instead.

The obligation continues to rest upon the party proposing to adduce oral evidence from overseas by video or telephone link, to establish to the satisfaction of the First-tier Tribunal (IAC) that there is no legal or diplomatic barrier to their doing so…

Each case will be considered upon its own merits, but even if a party is able to establish that there is no legal or diplomatic objection to a witness giving oral evidence to the Tribunal by video or telephone from the territory in which they are situated, it will remain a matter of judicial discretion by reference to the overriding objective as to whether such oral evidence should be admitted, balancing the need to avoid delay and the need to ensure that insofar as is practicable the best evidence is before the Tribunal on the issues that are central to the proceedings before it. The Tribunal will always need to consider the alternatives available.

This follows the recent decision in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC).

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