News & Views Monday 4th May to Sunday 10th May 2020

 
Chief Inspector Blasts Home Office Operation of Adults at Risk Policy

David Bolt, the Independent Chief Inspector of Borders and Immigration, has published his first report into the operation of the Adults at Risk policy. It makes fascinating reading for anyone involved in helping vulnerable adults secure release from detention. The report is balanced and objective, but also highly critical of the Home Office. The Adults at Risk policy was introduced to comply with section 59 of the Immigration Act 2016, which requires the Home Secretary to define what makes a detainee particularly vulnerable and identify the circumstances in which detention of vulnerable people will be appropriate. The intention was to reduce the unnecessary detention of vulnerable people. Mr Bolt’s report focuses on the operational mechanisms by which the policy has been implemented.

Post-Shaw changes not good enough. Following the first Stephen Shaw report into the welfare of vulnerable detainees, the Home Office made two major process changes. First, it introduced Detention Gatekeepers, who review the initial decision to detain. Gatekeepers have the power to block a decision to detain taken by a caseworker and their importance has been much lauded by the Home Office. The report notes that “senior management has a high degree of confidence in the quality of the DGK’s decisions”. Second, it introduced Case Progression Panels, which reviews detention at frequent intervals and are meant to ensure that the Adults at Risk policy is complied with. The Chief Inspector concluded that these changes have failed:

Read more: Freemovement, https://is.gd/XZKIwL



General Grounds For Refusal: Contriving to Frustrate the Intention of the Immigration Rules

Sometimes a migrant here in the UK unlawfully will want to apply for immigration status. Lawyers and the Home Office often call this “regularising” their status, because the person becomes a “regular” migrant within the rules rather than an “irregular” one outside the rules. One of the ways to do this is by leaving the country and making an application for entry clearance from outside the UK. Changes to the Immigration Rules, however, have made it successively harder and harder to acquire lawful status after being unlawfully present in the UK. One of the provisions that makes this particularly hard is paragraph 320 (11) of the Immigration Rules.

Paragraph 320(11) of the Immigration Rules is a discretionary ground for refusal. It provides that entry clearance or leave to enter the United Kingdom should normally (but not always) be refused: where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by: (i) overstaying; or (ii) breaching a condition attached to his leave; or (iii) being an illegal entrant; or (iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.

Read more: Freemovement, https://is.gd/hsg3Yb



High Court Blow For EU Citizens With Pre-Settled Status Trying To Claim Universal Credit

The High Court has rejected an argument that the regulations making it difficult for Europeans with pre-settled status to access most public funds are discriminatory on the ground of nationality. The case is Fratila and Tanase v SSWP [2020] EWHC 998 (Admin). Mr Justice Swift found that although the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 do not constitute direct discrimination, they do amount to indirect discrimination. But he held that this discrimination was justified, and thus not unlawful.

Habitual residence and right to reside: People are only entitled to Universal Credit if they are, among other things, “in Great Britain”. Regulation 9 of the Universal Credit Regulations 2013 specifies who can and can’t be treated as being in Great Britain. A person cannot be treated as being in Great Britain if they aren’t “habitually resident” in the UK. In turn, a condition of being habitually resident is having a “right to reside” in the UK. There are some exceptions under regulation 9(4), which lists categories of immigration status that allow the holder to skip the habitual residence test altogether.

Read more: Freemovement, https://is.gd/2LKLCp



Chief Inspector Blasts Home Office Operation of Adults at Risk Policy


David Bolt, the Independent Chief Inspector of Borders and Immigration, has published his first report into the operation of the Adults at Risk policy. It makes fascinating reading for anyone involved in helping vulnerable adults secure release from detention. The report is balanced and objective, but also highly critical of the Home Office. The Adults at Risk policy was introduced to comply with section 59 of the Immigration Act 2016, which requires the Home Secretary to define what makes a detainee particularly vulnerable and identify the circumstances in which detention of vulnerable people will be appropriate. The intention was to reduce the unnecessary detention of vulnerable people. Mr Bolt’s report focuses on the operational mechanisms by which the policy has been implemented.

Post-Shaw changes not good enough. Following the first Stephen Shaw report into the welfare of vulnerable detainees, the Home Office made two major process changes. First, it introduced Detention Gatekeepers, who review the initial decision to detain. Gatekeepers have the power to block a decision to detain taken by a caseworker and their importance has been much lauded by the Home Office. The report notes that “senior management has a high degree of confidence in the quality of the DGK’s decisions”. Second, it introduced Case Progression Panels, which reviews detention at frequent intervals and are meant to ensure that the Adults at Risk policy is complied with. The Chief Inspector concluded that these changes have failed:

Read more: Freemovement, https://is.gd/XZKIwL




Last year, in the important case of Balajigari [2019] EWCA Civ 673, the Court of Appeal ruled that, before refusing a settlement application on the basis that the person applying has been dishonest, the Home Office must: Let the applicant know that they are minded to refuse, and allow them a chance to submit more information as to why they should not be refused. With all of the evidence in front of them: Consider whether the applicant was dishonest: Consider whether, even if dishonest, the applicant’s presence in the UK is undesirable: Consider whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons

In the new case of R (Mansoor) v Secretary of State for the Home Department (Balajigari – effect of judge’s decision) [2020] UKUT 126 (IAC), the Upper Tribunal has found that The process required by the Court of Appeal in Balajigari may be carried out by the Tribunal in effect applying that guidance, such that the Secretary of State’s failure to do so is rendered immaterial. The tribunal also reiterated that a person can be allowed to remain in the UK despite dishonesty, although it would be “surprising” for the Home Office to grant them indefinite leave.

Read more: Freemovement, https://is.gd/abXFxJ


Record Child Displacement Figures Due to Conflict and Violence In 2019

A new UN report finds that some 19 million children were displaced within their own countries due to conflict and violence in 2019, more than in any other year, making them among the most vulnerable to the global spread of COVID-19. According to the “Lost at Home” report, published on Tuesday by the UN Children’s Fund (UNICEF), there were 12 million new displacements of children in 2019:  around 3.8 million of them caused by conflict and violence, and 8.2 million, due to disasters linked mostly to weather-related events.

The COVID-19 pandemic is only making a critical situation worse, the agency says.  Camps or informal settlements are often overcrowded, and lack adequate hygiene and health services.  Physical distancing is often not possible, creating conditions that are highly conducive to the spread of disease.  “When new crises emerge, like the COVID-19 pandemic, these children are especially vulnerable,” said UNICEF Executive Director Henrietta Fore.  “It is essential that Governments and humanitarian partners work together to keep them safe, healthy, learning and protected.”

The report looks at the risks internally displaced children face –- child labour, child marriage, trafficking among them -- and the actions urgently needed to protect them.  It calls for strategic investments and a united effort by Governments, civil society, companies, humanitarian actors and children themselves to address the child-specific drivers of displacement, in particular, violence, exploitation and abuse.

Read more: UN News, https://is.gd/6xtCso



Seven Million Children in Afghanistan at Risk of Hunger

KabuL, May 1 -- At a time when Afghan children need adequate daily nutrition to help strengthen their immune systems, the price of basic foods is rising under the lockdown, making it harder for families to feed themselves. A third of the population -- including 7.3 million children -- will face food shortages in May due to the current pandemic. Just in the past month, the price of wheat flour and cooking oil in Afghanistan's main city markets have increased by up to 23 percent as supply is unable to meet demand, while the cost of rice, sugar and pulses have increased by between 7 and 12 percent, according to the World Food Programme. While food prices are increasing, the financial ability of daily wage labourers to buy food is decreasing, as casual work dries up because of nationwide restrictions.

A large portion of the Afghan workforce relies on the informal sector, with no safety nets when work is scarce. Even before the global COVID-19 crisis, the total number of children who needed some form of humanitarian support this year stood at 5.26 million[ii], making war-torn Afghanistan one of the most dangerous places in the world to be a child. The most recent nutrition surveys in Afghanistan show that an estimated two million children under five will suffer from the most life-threatening form of extreme hunger annually[iii]. The effects of the lockdown coupled with one of the weakest health systems in the world -- Afghanistan has just 0.3 doctors per 1,000 people -- means malnourished and sick children are much less likely to get the life-saving treatment they need to survive.

Read more: Save the Children, https://is.gd/sG9IaC


What is a ‘Relationship Akin to Marriage’?

Under the Immigration Rules, a person who is British or Settled in the UK can bring their unmarried partner to the UK. This is sometimes referred to as a ‘partner visa’ or ‘de facto visa’. This is an option that more couples are currently considering, partly due to the ongoing restrictions around the world on wedding ceremonies due to covid-19.

In some cases, it will be a better option for a person to apply as an unmarried partner rather than a fiancee, where this is available to them This is because it will give a longer grant of leave in the UK and it will still allow you to get married in the UK when this is possible again. In this article we will look at when an unmarried partner can apply for leave to enter or remain in the UK.

Requirements for an Unmarried Partner visa: The Immigration Rules define a partner as: ‘a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application […]’

The Home Office guidance states that they expect to see evidence that the couple have lived together at the same address for a period of two years prior to the date of the application. However, this does not have to be immediately before the date of application. For example, if a couple have previously lived together for the required period, but have since had a period of time living apart, the requirement can still be met, providing the relationship has continued despite their living apart.

Read more: Gillian McCall, Richmond Chambers, https://is.gd/7kPJ8J




People Who Lie to The Home Office Are Unlikely to get Indefinite Leave to Remain

Last year, in the important case of Balajigari [2019] EWCA Civ 673, the Court of Appeal ruled that, before refusing a settlement application on the basis that the person applying has been dishonest, the Home Office must: Let the applicant know that they are minded to refuse, and allow them a chance to submit more information as to why they should not be refused. With all of the evidence in front of them: Consider whether the applicant was dishonest: Consider whether, even if dishonest, the applicant’s presence in the UK is undesirable :Consider whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons

In the new case of R (Mansoor) v Secretary of State for the Home Department (Balajigari – effect of judge’s decision) [2020] UKUT 126 (IAC), the Upper Tribunal has found that The process required by the Court of Appeal in Balajigari may be carried out by the Tribunal in effect applying that guidance, such that the Secretary of State’s failure to do so is rendered immaterial. The tribunal also reiterated that a person can be allowed to remain in the UK despite dishonesty, although it would be “surprising” for the Home Office to grant them indefinite leave.

Read more: Freemovement, https://is.gd/abXFxJ