The UK has been accused of employing “inadequate” provision for children’s rights protection after it fell dramatically in global rankings for child rights within a year, from 11th to 156th. Serious concerns have been raised about structural discrimination in the UK, including Muslim children facing increased discrimination following recent anti-terrorism measures, and a rise in discrimination against gypsy and refugee children in recent years. The UK now ranks among the bottom 10 global performers in the arena of improving rights of the child, after it achieved the lowest-possible score across all six available indicators in the domain of Child Rights Environment (CRE), according to the KidsRights Index 2017.

In this reported decision published on 11 May 2017, The Honourable Mr Justice McCloskey, President of the Upper Tribunal, found that the Secretary of State had acted unlawfully in refusing to consider family reunion applications due to the Applicants not having passports. Our client, a Bidoon from Kuwait, had already been granted asylum in the UK, along with his two elder children. His wife and younger children are living in dire conditions as asylum seekers in Iraq. Bidoons in Kuwait are not recognised as citizens by the state and are discriminated against. They are accordingly denied any formal identification such as passports/ travel documents.

With assistance from the British Red Cross family reunion project, our client tried on two occasions to make an application for his wife and children to join him in the UK. The process requires an Applicant to submit their applications to the Visa Application Centre abroad. These centres are run by sub-contractors of the UKVI. On both occasions, staff at the Visa Application Centres, first in Basra and then in Baghdad, refused to accept the applications because the family did not have passports. This in effect meant that the family had no way of having their applications considered by the UKVI. This was in spite of the family having official UNHCR documentation and a DNA test proving the familial relationship between the Sponsor and Applicants.

Read more: Bindmans Solictors, http://tiny.cc/bo56ky

US President Donald Trump is reportedly considering a proposal to send about 5,000 additional troops to Afghanistan and is expected to make a decision before a NATO summit on 25 May. US troops have now been fighting in Afghanistan for more than 15 years. Trump’s predecessor, Barack Obama, tried to wind down the mission, pulling all but around 9,000 soldiers out at the beginning of 2015. Since then, security has deteriorated further. The Special Inspector General for Afghanistan Reconstruction reported recently that, as of November, the government held control or influence over only 57 percent of the country’s 407 districts. The proposed “mini-surge” is reportedly aimed at pressuring the Taliban to the negotiating table. However, it’s unclear how effective such a strategy would be. After all, the Taliban refused to negotiate when the United States had 100,000 troops in the country.

Banger (Unmarried Partner of British National : South Africa) [2017] UKUT 125 (IAC) (30 March 2017)

The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:

(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?

(2) Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Directive")?

(3) Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?

(4) Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?

Decision

Introduction

1. This is the decision of the panel to which both members have contributed. While the application for permission to appeal was made by the Secretary of State we shall refer to the parties as they were described before the First-Tier Tribunal.

2. The Appellant is Rozanne Banger, a national of South Africa aged 50 years. The origins of the appeal lie in the decision of the Secretary of State to refuse the Appellant a residence card as confirmation of her right to reside with her partner in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations"). The Appellant's partner, Mr Rado, is a British national with whom she formerly resided in South Africa, from January 2008. In May 2010, both migrated to The Netherlands, her partner having accepted a work assignment there. They lived together in The Netherlands for a period of some five years during which the Appellant was granted a Dutch residence card in her capacity of extended family member of an EU citizen.

3.  Some three years later, they decided to move together to the United Kingdom. In advance, the Appellant applied to the Secretary of State for the Home Department (the "Secretary of State") for a residence card. On 26 September 2013, this application was refused in the following terms: " Your application has been considered under regulation 9 which states that to qualify as the family member of a British citizen you must show that you are either the spouse or civil partner of the British citizen. An unmarried partner is not recognised as the family member of a British Citizen. You do not have a basis of stay in the United Kingdom under the Immigration (European Economic Area) Regulations 2006."

[We shall describe this legislative measure as the "EEA Regulations"]

The battle lines between the parties were thereby drawn.

Fear of persecution or serious harm by the state or by non-state actors due to a person’s actual or perceived sexual orientation/gender identity.

1. Points to note

1.2.1 This note provides policy guidance on the general situation of gay men, lesbians, bisexuals and transgender persons. They are referred hereafter collectively as ‘LGBT persons’, though the treatment and experiences of each group may differ.

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

1.2.3 Decision makers must also refer to the Asylum Instructions on Sexual identity issues in the asylum claim and Gender identity issues in the asylum
claim.

An Afghani national who had been refused leave to remain in the UK as a partner of a British woman has successfully challenged a decision to certify his asylum and human rights claims as “clearly unfounded”.
 
The decision to certify his claim meant that Aziz Hussini would be unable to appeal the decision from within the UK, but a judge in the Court of Session ruled that the Secretary of State for the Home Department “erred in law” by failing to give “proper consideration” to the merits of the petitioner’s case.

Pregnant refugees and asylum seekers are facing “unacceptable delays” in receiving essential maternity support, a leading charity has warned. Women are being left unable to eat properly during pregnancy or buy essential equipment such as car seats once their babies are born due to administrative delays in financial support they are entitled to from the Government, according to the British Red Cross. The charity came to the aid of 5,438 people without adequate access to food, housing or healthcare between January and March this year, including providing nappies to 70 women and baby packs to 94.

Destitute women who are asylum seekers are eligible for additional financial support during pregnancy of £3 a week, a one-off maternity grant of £300 (£250 for refused asylum seekers who receive Section 4 support), and additional payments for children under the age of three. But the Red Cross has warned that these payments — which it says are "arguable not enough anyway" — are frequently delayed, leaving vulnerable women unprepared for their babies’ arrival, and charities having to stand in to provide support.

There is a direct conflict between the government’s approach to immigration control and its commitments to safeguarding children’s rights. Section 17 of the Children Act 1989 gives local authorities powers to provide support to families to prevent their children from being taken into care. As new legislation increases the risk of homelessness and destitution by making it harder for people to regularise their immigration status – and more difficult to survive while they go through the process – section 17 can act as a final safety net. It can compel local authorities to provide cash or accommodation to prevent families becoming homeless.

But there is a problem. All children have the right to a home and enough to eat, regardless of their parents’ immigration status, but local authorities get no additional funding to provide support to families under section 17. Emergency accommodation to prevent homelessness often amounts to overpriced, substandard hotels. Forced to make emergency bookings, and specifically prevented from using their social housing stock, councils often end up paying over the odds. They have to use their ordinary social care budgets because there is no additional funding available from central government. Unsurprisingly, budgetary pressures act as a disincentive to providing help. Parents are often threatened with having their children taken into care, wrongly told that there is no help available, and even subjected to racist abuse.

For the millions forced to flee their homes every year because of conflict, natural disasters, or other kinds of crisis, crossing a border changes everything. One’s status is immediately elevated from that of an internally displaced person, or IDP, to that of a refugee. The former, despite being twice as numerous, enjoy few if any binding rights under global humanitarian law, even if recommended assistance is spelled out in great detail under the Guiding Principles on Internal Displacement. In 2012, Africa signed up to a continent-wide instrument for IDPs known as the Kampala Convention, but it has yet to gain proper traction on the ground, as our recent article on Ethiopia illustrates. Refugees, on the other hand, receive a range of international protections outlined in a landmark piece of international law adopted in 1951. Almost 20 years ago, in an effort to redress the balance, the Norwegian Refugee Council set up the Internal Displacement Monitoring Centre as a source of detailed data and analysis on IDPs across the world. The distinction between IDPs and refugees is often spurious and generally inequitable. The links between the two categories, and what drives internally displaced people to cross borders, are the focus of the IDMC’s 2017 annual report, to be released on 22 May. It will also examine the issue of refugees being forced to return to their home countries, sometimes against their will and often into a state of internal displacement. If we told you now how regularly someone somewhere in the world is forced to flee a home, IDMC would be very cross with our embargo-busting thunder theft, but the time frame is shocking.

Source: IRIN, http://tiny.cc/oor5ky

This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 2 May and 15 May 2017.

Basis of claim

1. Fear of persecution or serious harm by state or non-state actors due to the person’s membership of an ethnic minority group.

1. Points to note

1. In this note, ‘ethnic minority group’ means Roma, Balkan-Egyptians, Vlachs (Aromanians), Gorani, and ethnic Greeks, Macedonians, and Montenegrins, though the treatment and experiences of each group differ.

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