1.1 Basis of claim

1.1.1 Fear of domestic violence from non-state actors and lack of effective protection from the Jamaican authorities.

Published on Refworld, 31/01/2017
http://www.refworld.org/docid/589085344.html

1.1 Basis of claim
1.2
1.1.1 A fear of persecution or serious harm by the state or its proxies because of the person's actual or perceived involvement in political opposition activities against the government.

1.2 Points to note

1.2.1 Actual or perceived involvement in political opposition activities includes: members or supporters of political parties, protestors, journalists, civil society activists and teachers.

1.2.2 People who may be considered as proxies of the state include the Zimbabwe National Liberation War Veterans Association ('the War Veterans'), the Youth Brigades and ZANU-PF members.

Published on Refworld, 31/01/2017
http://www.refworld.org/docid/589084f04.html

[(I) It is impossible to overstate the importance of the duty of candour in judicial review proceedings. Any failings by the Executive in this respect threaten the guarantees upon which judicial review is founded and are inimical to the rule of law.

(II) A failure by the Executive to conduct judicial review proceedings with the necessary degrees of candour, efficiency and attention compromises the ability of its legal representatives to discharge their ethical and professional duties.

(III) All of the aforementioned duties are encompassed within an overarching obligation of good faith rooted in respect for the rule of law.

(IV) Failings of this kind may be reflected in various ways, including how the judicial exercise of discretion in the matter of costs is performed.]

Published on Bailii, 27/01/2017
http://www.refworld.org/docid/588b16924.html

1.1 Basis of claim
1.1.1 Fear of persecution or serious harm by state or non-state actors due to the person's membership of a minority group.

1.2 Points to note
1.2.1 For the purposes of this note, 'minority group' means Roma; Jews; ethnic Russians, Belarusians, and Moldovans; Muslims and Tatars; and people of African descent.

1.2.2 Unless otherwise stated, this note refers to the position with regard to the treatment of minority groups in the government-controlled areas of Ukraine. For information and guidance on the situation in Crimea and the Donbas, see the country policy and information note on Ukraine: Crimea, Donetsk and Luhansk.

1.2.3 Where a claim is refused, it must be considered for certification under section 94 of the Nationality, Immigration and Asylum Act 2002 as Ukraine is listed as a designated state.

Published on Refworl: 31/01/2017
http://www.refworld.org/docid/589084204.html

1.1 Basis of claim
1.1.1 Fear of persecution or serious harm by the state because of:

(a) the treatment and/or conditions likely to be faced by the person during compulsory military service duties; and/or

(b) the penalties likely to be faced by the person's refusal to undertake, or their desertion from, military service duties.

1.2 Other points to note
1.2.1 Where a claim falls to be refused, it must be considered for certification under section 94 of the Nationality, Immigration and Asylum Act 2002 as Ukraine is listed as a designated state.

Published on Refworl: 31/01/2017
http://www.refworld.org/docid/5890825c4.html

“As human beings we reach this conclusion without enthusiasm, as judges we do so without any real hesitation.” McCloskey, Francis and Soole – Judges or Job’s Comforters?

[(I) Where the case of a foreign national who is not an offender does not satisfy the requirements of the Article 8 ECHR regime of the Immigration Rules, the test to be applied is that of compelling circumstances.

(II) The Parliamentary intention underlying Part 5A of NIAA 2002 is to give proper effect to Article 8 ECHR. Thus a private life developed or established during periods of unlawful or precarious residence might conceivably qualify to be accorded more than little weight and s 117B (4) and (5) are to be construed and applied accordingly.

(III) Mere hardship, mere difficulty, mere hurdles, mere upheaval and mere inconvenience, even where multiplied, are unlikely to satisfy the test of “very significant hurdles” in paragraph 276 ADE of the Immigration Rules.]

Preface
(I) This judgment is in two Parts, in consequence of the conventional (though not invariable) separation of the error of law hearing and the remaking hearing. The error of law decision is reproduced fully in [1] – [26] below. It is reported at [2015] UKUT 00674 (IAC). It is appropriate to note that one aspect of this decision was, in substance, disapproved by a subsequent decision of the Court of Appeal: see MM (Uganda) v SSHD [2016] EWCA Civ 450, concerning section 117C (5) of the 2002 Act. This was followed with notable reluctance by a different division of the Court of

Appeal in MA (Pakistan) [2016] EWCA Civ 705, where the judgment of Elias LJ acknowledges the strength of this Tribunal’s competing interpretation of section 117B (6) espoused by this Tribunal in the present appeal, contained in Part 1: see [36] – [45]. It may be that the Supreme Court will be the ultimate arbiter. In the meantime, the decision in MM (Uganda) is the binding one concerning section 117C (5) and MA (Pakistan) is binding concerning section 117B (6).

(II) The second main aspect of this Tribunal’s error of law decision is expressed in the headnote of the initial reported version, at [2015] UKUT. (IAC) in these terms:
Section 117B (4) and (5) are not parliamentary prescriptions of the public interest. Rather, they operate as instructions to courts and tribunals to be applied in cases where the balancing exercise is being conducted in order to determine proportionality under Article 8 ECHR, in cases where either of the factors which they identify arises.

Decision
52. We remake the decision of the FtT by dismissing the Appellants’ appeals. While as human beings we reach this conclusion without enthusiasm, as judges we do so without any real hesitation.

53. While the Tribunal is not required to determine the discrete issue of whether it would be disproportionate to require the removal of the four children concerned from the United Kingdom in the middle of the school year, we consider it appropriate to add that any argument to this effect would be a powerful one. The doctrine of proportionality has much in common with what is humane, sensible, measured and reasonable. It would be, as a minimum, surprising if the Secretary of State were to insist on the removal of this family from the United Kingdom prior to the end of the current academic year. Furthermore, such action would, predictably, generate further legal challenge with resulting – and pre–eminently avoidable - delay, expense and uncertainly to all concerned.

Published on Bailli: 27/01/2017
http://www.refworld.org/docid/588b1f5d4.html

The use of migrant detention across Europe, whether for the purpose of stopping asylum seekers and other migrants entering a country or for removing them, has long been a serious human rights concern. I have repeatedly spoken out against the pan-European trend of criminalisation of asylum seekers and migrants, of which detention is a key part. Detention is a far-reaching interference with migrants’ right to liberty. Experts have confirmed its very harmful effects on the mental health of migrants, especially children, who often experience detention as shocking, and even traumatising.

For this reason, it is imperative that states work towards the abolition of migrant detention. This does not mean giving up on managing one’s borders, including decisions over who enters a country and who can stay. It means investing in alternative measures to manage migration effectively, which are not as far-reaching and harmful as detention. Thanks to the important work of civil society organisations, national human rights structures, the EU Fundamental Rights Agency, the UN and the Council of Europe, the past few years have seen an upsurge in discussions about alternatives to immigration detention.

Read more: Nils Muižnieks, Commissioner for Human Rights

http://tinyurl.com/he2h3bn

Early Day Motion 901: Extraordinary Rendition

That this House recognises that between 2001 and 2005, at least 24 aircraft with known links to the US Central Intelligence Agency stopped on Scottish soil, a total of 107 times enroute or returning from missions that involved activities widely believed to include kidnapping, torture and extraordinary rendition; notes that these aircraft refuelled at Scottish airports enroute to or from known destinations for the purpose of extraordinary rendition and torture; further notes that Aberdeen, Edinburgh, Inverness, Glasgow, Prestwick and Wick John O'Groats airports were all used in the rendition of terrorist suspects; further recognises that responsibility for authorising such flights rests with the Government and that transfers to torture are designed and intended to deprive the individual of their most basic human rights; acknowledges that the use of Scottish airports to service aircraft undertaking extraordinary rendition is wholly unacceptable and that the people of Scotland wish no part in facilitating or enabling extraordinary rendition flights that ultimately subject fellow human beings to the cruellest abuse imaginable; and concludes that the Government must never again authorise in secret the use of Scottish airports to facilitate the breach of any individual's inalienable human rights.

House of Commons: Date tabled: 31/01/2017

Put Your MP to Work – Demand They Sign EDM 901

Find your MP: https://www.writetothem.com/

 It is not necessary that the asylum seeker personally committed terrorist acts, or instigated such acts, or participated in their commission

Judgment in Case C-573/14  Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani

In 2006, Mr Mostafa Lounani, a Moroccan national, was convicted in Belgium by the Brussels Criminal Court and sentenced to six years imprisonment, with respect to his participation in the activities of a terrorist group - namely the Belgian cell of the ‘Moroccan Islamic Combatant Group’ (‘the MICG’) – as a member of its leadership, criminal conspiracy, use of forged documents, and illegal residence. That court found in particular that Mr Lounani was guilty of ‘active participation in the organisation of a network for sending volunteers to Iraq’. In particular, the fraudulent transfer of passports was described as ‘an act of participation in the activities of a cell providing logistical support to a terrorist movement’. 

In 2010, Mr Lounani applied to the Belgian authorities for refugee status. He claimed that he feared persecution in the event of his being returned to Morocco because of the likelihood that he would be regarded by the Moroccan authorities as a radical Islamist and jihadist, following his conviction in Belgium. That application for asylum was rejected. 

 The full text of the Judgment is published on CURIA

Surround Morton Hall IRC – “Stop Deaths in Detention: Shut Down All Detention Centres”

Join us on Saturday 11 March 2017 12 Noon

Morton Hall IRC, Morton Hall Village, Swinderby, Lincoln, LN6 9PT

There have been three deaths in the last two months, in Immigration Detention Centres two of them at Morton Hall IRC. Lukasz Debowski, 27-year-old Polish detainee, died on the 11th January 2017. Bai Ahmed Kabia, a 49-year-old man from Sierra Leone, died on the 6th December 2016

Since 1989 Twenty-Nine people have died in Immigration Detention Centres and Five shortly after release.

Morton Hall Immigration Removal Centre is run by the Prison Service for the Home Office and can detain 392 people. In the first nine months of 2106, there were 48 Hunger Strikes, 28 attempted suicides and 192 detainees on suicide watch.

Join us on 11th March with your banners and noise, we will surround Morton Hall IRC and demonstrate our solidarity with people detained there and demand “Shut Down all Detention Centres”

Further details from John Grayson SYMAAG j.grayson@phonecoop.coop  Mob 07887 481355 http://www.symaag.org.uk/

Demonstration: Called by: South Yorkshire Migration and Asylum Action Group

[(1) The seventh of the principles in the Zoumbas code does not preclude an outcome whereby the best interests of a child must yield to the public interest.

(2) This approach has not been altered by Part 5A of the Nationality, Immigration and Asylum Act 2002.

(3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct.

(4) The best interests assessment should normally be carried out at the beginning of the balancing exercise.

(5) The “little weight” provisions in Part 5A of the 2002 Act do not entail an absolute, rigid measurement or concept; “little weight” involves a spectrum which, within its self-contained boundaries, will result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case.

(6) In every balancing exercise, the scales must be properly prepared by the Judge, followed by all necessary findings and conclusions, buttressed by adequate reasoning.]

Published on Bailii, 27/01/2017
http://www.refworld.org/docid/588b1ed04.html

[(i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context.

(ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial.

(iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.

(iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise.]

Decision – (Allowed)

Introduction
1. By this decision is remade the decision of the First-tier Tribunal (the “FtT”) which, by earlier decision of this Tribunal promulgated on 18 October 2016, was set aside on account of error of law.

Framework of this appeal
2. The Appellant is a national of Nepal, born on 19 December 1989 and now aged 26 years. The origins of this appeal are traceable to an application made by the Appellant to the Respondent, the Secretary of State for the Home Department (the “Secretary of State”), dated 04 February 2015. In the decision which ensued, this is described as an application “for leave to remain in the United Kingdom on the basis of private life in the UK”.

3. The Secretary of State’s decision is in two parts. In the first part, consideration was given to whether the Appellant’s application satisfied any of the material requirements of the discrete Article 8 regime contained in the Immigration Rules (the “Rules”), specifically paragraph 276 ADE. The decision maker concluded that the application did not satisfy the requirements of the Rules. The second part of the Secretary of State’s decision is rehearsed under the rubric “Decision on ExceptionalCircumstances”.

It states: “It has also been considered whether the particular circumstances set out in your application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 ……, might warrant a grant of leave to remain in the UK outside the requirements of the Immigration Rules. In support of your claim, you state you receive money from relatives or friends [sic] who give you money when needed. This arrangement could continue, the money could be transferred to you overseas and would provide financial support to you. Furthermore you have stated that you have established a wide network of friends in the UK however [sic] these friendships in the UK can continue from overseas via modern methods of communication. Furthermore, the option is open to your friends to visit you in Nepal. It has therefore been decided that there are no exceptional circumstances in your case. Consequently your application does not fall for a grant of leave outside the rules.”

45. As emphasised in recent decisions such as Treebhawon and Kaur, the crucial task for courts and tribunals in every proportionality exercise is to prepare the scales correctly in law. This involves identifying all material facts and factors, disregarding everything that is immaterial (or illegitimate) and forming a balanced view, giving due respect to the executive’s formulation of the public interest viz the legitimate aim in Article 8(2) terms. Correct self-direction in law is also, self-evidently, an indispensable requirement.

46. Balancing the main facts and factors identified above against the strong public interest in play, I conclude that the Secretary of State’s refusal to grant indefinite leave to remain to the Appellant does interfere disproportionately with the right to respect to private life guaranteed to the Appellant and Mr R under Article 8 ECHR, via section 6 of the Human Rights Act 1998. I consider that the special, unique and compelling features of the relationship and arrangements under scrutiny combine to outweigh the public interest. This is my evaluative assessment in this highly unusual and intensely fact sensitive cases. The public interest must yield in the circumstances.

47. As this decision demonstrates the judgement to be made in cases of this genre is never clear cut and is frequently positioned in close proximity to the notional borderline. The fusion of immigration law and human rights law produces such cases with some regularity.

Conclusion

48. The appeal is allowed accordingly.

Published on Bailii, 27/01/2017
http://www.refworld.org/docid/588b172f4.html