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
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