This appeal concerns the treatment by the Home Office of a young Vietnamese man who is said to have been a victim of trafficking. 

I would allow the appeal and make a declaration to the effect that the Secretary of State acted in breach of her duty under article 4 of the ECHR and thus section 6 of the 1998 Act by releasing the Appellant on 6 November 2015 without having put in place adequate measures to protect him from being re-trafficked. 

Mr Buttler asked us also to make orders prescribing what the Secretary of State should do, or not do, if the Appellant were to be found by him in the future – specifically (a) that he should not remove the Appellant until there has been a conclusive decision about whether he is a victim of trafficking and (b) that he should notify Simpson Millar within 24 hours.  As to (a), I do not believe that it is right in principle to make a final order enjoining the Secretary of State from taking a step which there is no reason to believe that he intends to take: as Mr Lewis pointed out, the Secretary of State will be fully aware of what this Court has held and of its implications.  As to (b), the circumstances in which the Appellant may be found – maybe years hence – are unpredictable, and I do not think that a mandatory final order prescribing how the Secretary of State should act (let alone within 24 hours) is appropriate: simply by way of example, the Appellant might in the meantime have obtained other legal advisers.  I would, however, hope and expect that as a matter of good practice the Secretary of State would promptly so inform Simpson Millar, or in any event ensure that the Appellant was enabled to do so, unless there were some good reason not to.  Mr Buttler told us that similar orders had been made interlocutorily in other cases; but this is a final order.

Ms Mountfield in her skeleton argument submitted that what went wrong in the present case was more than simply a one-off error and that it reflected a much more general failure on the part of the Home Office to understand how to handle potential victims of trafficking.  I am not in a position to express any view about that, but I would certainly hope that the Secretary of State will give careful consideration to whether any general lessons can be learnt from this case.

Read the full judgement: https://is.gd/yhF75b

The UK government has reached an agreement with the European Union (EU) on citizens’ rights, ahead of the UK leaving the EU on 29 March 2019.

There is no need for EU citizens, or their family members, living in the UK to do anything now. If you would like to find out the latest information you can sign up for email updates.

An ‘implementation period’ will run from when we leave the EU to 31 December 2020. The rights of EU citizens and their families living in the UK will not change until 1 January 2021. Until this date, EU citizens will continue to be able to live here and access public funds and services as they do at the moment. 

From later this year, EU citizens and their family members living in the UK will be able to start applying for UK immigration status through the new EU Settlement Scheme.

People who are living in the UK by 31 December 2020 will have until 30 June 2021 to make an application for status under the scheme.

From 1 July 2021, EU citizens and their family members in the UK must hold or have applied for UK immigration status to be here legally.

You will not need to apply if you’re an Irish citizen, but may choose to do so if you wish. Rights for citizens of Norway, Iceland, Liechtenstein and Switzerland are currently being negotiated, but we intend that the settlement scheme will be open to them.

McGill & Co, https://is.gd/DyekYx

In today’s Opinion, Advocate General Melchior Wathelet observes, first, that the situations in which a Member State may refuse or revoke refugee status pursuant to that directive correspond to the circumstances in which the Geneva Convention authorises the return of a refugee. The Advocate General points out, however, that the obligations of the Member States in matters of the protection of fundamental rights broadly counteract their ability to return refugees. Where a refugee cannot be returned, despite the fact that he constitutes a danger to the security of the Member State of refuge or to its society, that Member State nevertheless has the option, pursuant to the Qualification Directive, of depriving that individual of his refugee status.

Next, the Advocate General points out that the revocation of or the refusal to grant refugee status does not have the result that the individual concerned is no longer a refugee. According to the Advocate General, it is apparent from the text, objectives and overall scheme of that directive that being a refugee, on the one hand, and having refugee status, on the other hand, are two distinct concepts. Refugee status derives from the sole fact that a person qualifies as such, irrespective of any recognition by a Member State. As long as a person qualifies as a refugee, that person continues to be a refugee. Refugee status, within the meaning of the provisions of the Qualification Directive which allow refusal or revocation, designates, by contrast, the benefit of rights deriving in principle from the recognition of refugee status pursuant to that directive. The Advocate General observes that some of those rights (such as the right to a residence permit, the recognition of qualifications, and healthcare) have no equivalent in the Geneva Convention, and that others (such as the right to access to employment, housing and social assistance) are guaranteed by that convention only to refugees who are legally resident in the country of refuge.

Consequently, the Advocate General considers that the revocation of or refusal to grant refugee status leads to the individual concerned not, or no longer, benefiting from the rights provided for by the Qualification Directive, it being understood that he nevertheless remains a refugee and retains all the rights guaranteed by the Geneva Convention for any refugee irrespective of the lawfulness of his residence (such as the rights to non-discrimination, access to justice and state education as well as protection against deportation). Furthermore, the refusal to grant refugee status does not discharge the Member State concerned from its obligation to examine the application for asylum submitted to it and to recognise the applicant’s refugee status, where appropriate, at the conclusion of that examination.

The Advocate General concludes that the provisions of the Qualification Directive allowing a Member State to revoke or to refuse refugee status do not infringe the Geneva Convention and, accordingly, are compatible with the provisions of the TFEU and of the Charter.

European Court of Justice: https://is.gd/dIiAV8

In May 2018, the HM Chief Inspector of Prisons published a report following an inspection of a charter removal of asylum seekers by the Home Office’s Third Country Unit (“TCU”). This was the first inspection of this facility. The report found that operational practice is falling short of the required standards in respect of the unjustified use of force against asylum seeker transferees.

The role of the TCU is to manage the transfer of asylum seekers to and from the UK under the Dublin Convention. The Dublin Convention is an EU law which determines which EU Member State is responsible for examining and considering an asylum claim under the Geneva Convention, and allows EU Member States to transfer an asylum seeker to the responsible state.

Many detainees are returned to third countries using scheduled flights – however, in February 2017 the Home Office started to use charter aircraft to remove groups of detainees. The report inspected the facilities at which these detainees were held.

It detailed a serious level of concern over the removal of the detainees with the inspectors reporting that the TCU operation was being conducted with the use of restraint which was unnecessary and excessive. Nearly all detainees were placed in waist restraint belts for the entire journey. In many cases, restraints were not necessary, proportionate or reasonable.

Additionally, the inspectors’ report states that the staff escorting the detainees on the flights were briefed incorrectly and were led to believe that detainees were high-risk, when the majority of passengers had no history of being disruptive. The staff were reportedly using disrespectful language and outnumbered the detainees approximately 3 to 1.

On the back of the evidence provided by this inspection, the HM Chief Inspector of Prisons concluded that operational practice is still falling short of the standards aspired to by the Immigration Minister in response to concerns expressed in 2017 by the Independent Monitoring Board.

The Chief Inspector of Prisons, Peter Clarke, said: “We regularly inspect other detention settings where far more disruptive and challenging behaviour is managed without such physical restraints. Clearly, some senior-level intervention is required to ensure that the situation is rectified without delay”.

A fully copy of the report can be viewed here.

Posted by: Gherson Immigration, https://is.gd/WosAOh

This report presents country of origin information (COI) on Pakistan from September 2016 up to 15th March 2018 on issues identified by UNHCR to be of relevance in refugee status determination for Pakistani nationals not including the Pakistan-administered Kashmir region. COI specifically relevant for the assessment of religion-based claims has not been included.

The COI presented is illustrative, but not exhaustive of the information available in the public domain, nor is it determinative of any individual human rights or asylum claim. All sources are publicly available and a direct hyperlink has been provided. It should be understood that as elucidated by Cyril Almeida, Assistant editor and journalist of the Dawn newspaper, Pakistan in a presentation for an October 2017 EASO COI meeting:  […] please note that if you follow the media or the press in Pakistan, you cannot truly understand Pakistan because there are many areas and subjects which are no-go areas. There are topics and issues that don't get the coverage that they should, sometimes because there are no resources because of the media’s own constraints, but often because of pressure from all sides - State pressure, militancy pressure and extremism pressure. A couple of newspapers, for example, have been unofficially banned in military cantonments in the country. That is something not discussed publicly, but there are a range of issues and pressures that exist in Pakistan that a reader may not necessarily get a sense of just by consuming media coverage in the country.

Read more: Refworld, https://is.gd/Hq14hN

The loss of a spouse or partner is often devastating, but for many women it is magnified by a “long-term struggle” for basic needs, human rights and dignity, according to UN Women, in a message to mark International Widows’ Day.
On its website dedicated to the Day, the United Nations calls the abuse of widows and their children “one of the most serious violations of human rights and obstacles to development today. We must consider both the vital role widows play in our society, the ways in which gender inequality impacts their ability to thrive on their own, and the specific recognition and attention that they need from all of us,” underscored Phumzile Mlambo-Ngcuka, Executive Director of UN Women in her message for the Day. 

Across a wide range of countries, religions and ethnic groups, when a woman’s husband dies, she is left destitute – often illiterate or uneducated with no access to credit or other economic resources – rendering her unable to support herself or her family, according to the UN. According to UN Women’s 2018 Turning Promises into Action: Gender Equality in the 2030 Agenda for Sustainable Development, nearly one-in-ten of the estimated 258 million widows globally live in extreme poverty – with little or no input to policies impacting their survival.

Read more: UN News, https://is.gd/EK8LLP

On 5 June 2018 the Grand Chamber of the European Court of Justice (“ECJ”) gave its judgment in the case of Coman and Others. The case considered the definition of a ‘spouse’ with respect to family members of EEA nationals exercising treaty rights, namely same-sex married partners residing in countries where the national law does not recognise same-sex marriage. 

The case centred on Mr Coman, who holds both Romanian and US citizenship, and who is married to Mr Hamilton, a US citizen. The couple met in June 2002 in New York and lived together in the US between May 2005 and May 2009. Mr Coman subsequently moved to Brussels to work at the European Parliament, while Mr Hamilton continued to reside in the US. The couple married in Brussels in November 2010.

In December 2012, the couple contacted the Romanian Inspectorate to enquire about if and how Mr Hamilton, a non-EEA national, could lawfully reside in Romania for more than three months.

In January 2013, the Inspectorate responded to the couple’s enquiry stating that Mr Hamilton, as the same-sex partner of an EEA national, did not have the right to reside in Romania for more than three months. The response included an explanation stating that the Romanian Civil Code did not recognise same-sex marriage and therefore Mr Hamilton could not be granted temporary residence on the grounds of family reunion.

In October 2013, Coman and Others brought an action against the Inspectorate before the Court of First Instance in Romania, seeking a declaration of discrimination on the grounds of sexual orientation as regards the exercise of the right of free movement in the EU. Coman and Others also requested that the Inspectorate be ordered to end the discrimination and to pay compensation for damages. They argued that a failure to recognise same-sex couples who married abroad was an infringement of the Romanian Constitution which protects the rights to family life and private life, as well as the provisions relating to the principles of equality.

The Court of First Instance in Romania referred the case to the Constitutional Court of Romania for a ruling on the plea of unconstitutionality. The case was subsequently referred to the ECJ.

The Constitutional Court of Romania referred to the ECJ four questions surrounding the definition of spouse in EU law and how it should be interpreted with regards to free movement rights. The questions can be summarised as follows:
Does the term “spouse” include same-sex couples lawfully married in another EU country under the EEA Immigration Regulations?

If the answer to question 1 is yes, then are all EU countries required by law to grant the same-sex spouse of an EU national, lawfully married in the EU, the right to reside in that country?

If the answer to question 2 is no, then are same-sex spouses considered “other family members” of the EU national?

If the answer to question 3 is yes, then are all EU countries required to allow the same-sex spouse of an EEA national to reside in that country?

The hearing was held on 21 November 2017 and the Advocate General Melchior Wathelet delivered his opinion in January 2018. On 5 June 2018, the Court in the Grand Chamber answered the questions put to them by the Romanian Constitutional Court as follows:

The definition of “spouse” includes same-sex couples. Therefore, where an EU national has legally married a third country national in an EU country, all other countries must acknowledge this marriage.

As the answer to question 1 was yes and the definition of “spouse” under the EEA Immigration Regulations includes same-sex couples lawfully married in another EEA country, all EEA countries must grant a same-sex spouse the right to reside in that country.

As questions 1 and 2 were both answered affirmatively, questions 3 and 4 were not answered.

This case therefore affirmed the residency rights of EU nationals in same-sex marriages, where at least one partner is an EU citizen and the marriage was legally performed in an EU member state.  

Posted by: Gherson Immigration, https://is.gd/aToykE

UKLGIG have published an important briefing paper summarising the important guidance and framework set out by this case. It considers each of the four questions that lie at the core of the judgment, questions which are still often wrongly framed and approached by decision-makers. It provides recommendations for decision-makers.  It will hopefully also prove to be a useful resources for lawyers and policy makers. 

The paper can be downloaded from the UKLGIG website here: download

HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 is the lead case in the UK about claims for asylum based on sexual orientation. In this case, the Supreme Court gave detailed guidance on questions which had posed real problems to decision-makers and courts. While HJ and HT are gay men, the guidance given is directly relevant to all claims based on sexual orientation. Eight years on, it is still important to go back to the Supreme Court’s judgment to ensure that the correct approach is taken to claims based on sexual orientation. 

The key conclusion reached by the Supreme Court is that no one can be expected, still less required, to conceal who they are in order to avoid persecution. 

The judgment also gives important broader guidance on how to decide asylum claims based on sexual orientation, and sets out a framework (at paragraph 82 of the Judgment) for decision-making. This briefing paper aims to summarise this important judgment as it stands. 

Where it gives rise to other questions, and the law may be further developing in the 8 years since HJ (Iran) was decided, the paper has tried to identify this. The issue of potential application of HJ (Iran) to claims relating to gender identity lies outside of the scope of this briefing paper.

Source: UKLGIG, https://uklgig.org.uk/