News & Views Monday 8th June to Sunday 14th June 2020

 
Leave to Remain Does Not Automatically Mean ‘No Public Funds’

Under normal circumstances, the so-called ‘no recourse to public funds regime’ (“NRPF regime”) represents one of the default conditions for a grant of leave to remain in the UK (“LTR”). The High Court has recently ruled, however, that in certain circumstances, where the consequences of such a regime result in the applicant suffering inhumane or degrading treatment, the application of this condition by the Home Office may be unlawful. The Claimant in the case that came before the High Court was a British citizen child, whose mother had LTR on the 10-year route to settlement and was subject to the NRPF regime. The mother had been employed as a carer for disabled people and earned a relatively low salary. The imposition of the NRPF condition therefore led her and her child to endure periods of destitution and resulted in the family being homeless for some time. They were rehomed by a local authority, but were required to relocate frequently, which severely disrupted the child’s education.

Prior to her most recent application, the Claimant’s mother provided evidence to show that she would be left destitute if the NRPF condition was imposed on her. Nevertheless, the Home Office disregarded her plea and the condition was enforced. A claim was therefore prepared arguing that the NRPF condition was unlawful. As a result of the pre-action correspondence, the condition was lifted by the Home Office before the case was able to come before the Court. However, this measure had no retrospective effect and did not allow the Claimant’s mother to take advantage of access to housing benefit and tax credits for the whole period of time during which the family had been subject to destitution. A judicial review application was subsequently filed to challenge the Home Office’s decision to impose the NRPF condition, and to seek wider accountability for the repercussions of the legal basis under which the NRPF condition is enforced.

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



Refugee Convention: Who Are Refugees and Asylum Seekers?

This piece is about refugees, asylum seekers, and the Refugee Convention. It outlines who can be a refugee, and how being a refugee and having “refugee status” are two very different things. We also explore the rights and entitlements available to refugees and to asylum seekers awaiting the outcome of their claim, and how these have changed over time. Finally, the piece considers how people can be excluded from benefitting from refugee rights under the Convention.

Refugees and the Refugee Convention - The relocation of refugees and asylum seekers dates back to the ancient customary “right of asylum”, under which the international community would provide protection to those forced to flee their home countries. In the 20th century these rights were formalised under international law into duties owed by states to those fleeing persecution and serious harm. The most important of these pieces of international law is the Refugee Convention 1951 and its 1967 Protocol. The Refugee Convention is not UK immigration legislation. It is a piece of international human rights law, designed to remedy the problems that arise when people or groups of people can no longer rely on their state to protect their most fundamental rights. In this way it is unusual amongst other human rights law (such as the European Convention on Human Rights or ECHR) because of its palliative focus – that is, it deals with the symptoms of state-sponsored human rights abuse, and not its causes.

Read more: Freemovement,  https://is.gd/rRl8mq


Revealed: Unpublished Guidance On Detaining Vulnerable Migrants

Lawyers have uncovered internal Home Office guidance on detaining vulnerable migrants. Duncan Lewis Solicitors and Garden Court Chambers secured the previously unpublished documents, which discuss how the Adults at Risk policy should be interpreted and applied, via a hard-fought Freedom of Information request. The gist of the guidance is that caseworkers should not second guess medico-legal reports unless there are “clear mistakes or errors”, nor “specifically challenge the doctors’ clinical opinion”. The lawyers say that their request for the information was prompted by concerns that, in practice, the Home Office was routinely failing to treat MLR reports as amounting to Level 3 evidence despite express findings by psychiatrists that detention was causing, or was likely to cause, harm to the individual’s mental health. A note by Duncan Lewis and Garden Court summarising the internal guidance and how it might be help with detention challenges is available here (pdf). Practitioners can also download the full Freedom of Information response, which includes emails from the Adults at Risk Returns Assurance Team, here (pdf). Contact Lewis Kett or Grace Capel with follow-up questions.

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



Serco Wins Covid-19 Test-And-Trace Contract Despite £1m Fine

Calls for government to cancel £45m deal with outsourcing company over track record of poor performance. Serco, one of the companies that has secured a lucrative government contract for the Covid contact-tracing programme, was fined more than £1m for failures on another government contract just months ago, the Observer has learned. The revelation has led to campaigners against the privatisation of public services to call for the £45.8m test-and-trace contract to be cancelled. Serco has a range of government contracts both in the UK and overseas, much of it focused on criminal justice and immigration. It has already had to apologise after breaching data protection rules on its test-and-trace contract by inadvertently revealing the email addresses of new recruits. The junior health minister, Edward Argar, is a former Serco lobbyist.

Serco, whose chief executive is Rupert Soames, grandson of Sir Winston Churchill, is one of a number of companies that has contracts with the Home Office to provide accommodation for asylum seekers. As a result of failures in this contract in 2019, Serco was fined more than £1m by the government, but no breakdown of the failures has been disclosed in a freedom of information response obtained by the Scottish Refugee Council after a six-month battle. This latest fine does not appear to have hampered Serco’s ability to win a raft of government contracts in recent months. According to the company’s website, alongside the test-and-trace contract, it secured an £800m 10-year prisoner escort-and-custody contract in October 2019, and in February this year a new contract, valued at £200m, to manage two immigration removal centres close to Gatwick airport . Serco has received larger fines in the past, notably more than £19m as part of a settlement with the Serious Fraud Office over failures in electronic tagging dating back to 2010.

Read more: Diane Taylor, Guardian, https://is.gd/W8WpSu



166 MP's From All Parties Call For UK to Stop Teargas and Rubber Bullet Exports to US


Pressure is growing on ministers to suspend the export of British riot gear, teargas, and rubber bullets to the US in light of a violent police crackdown against peaceful civil rights protesters in the country. More than 160 MPs from every major party in the Commons, including Boris Johnson’s own, have written to Liz Truss, the international trade secretary, calling for an immediate end to exports while an investigation takes place. Meanwhile nearly half a million people have signed a petition on the issue in just a few days backing the call to end sales. The 166 MPs from the Labour party, the Conservatives, SNP, Liberal Democrats, Greens, Plaid Cymru, Sinn Fein, Alliance, and SDLP say there is a “need to act fast” and that the government “is bound by law to freeze export of all policing and security equipment to the US where it could be misused”. “To witness not only the murder but what can easily be described as a lynching of a black man at the hands of a police officer is an incident that has shocked the world,” the letter, organised by Labour MP Dawn Butler says.

Read more: Jon Stone Independent, https://is.gd/hOLMJl

Petition Suspend UK Export Of Tear Gas, Rubber Bullets And Riot Shields to USA

527,871 have signed. Let’s get to 1,000,000!
You can sign the petition here: https://is.gd/9VbFbM


Immigration Appeals Much More Likely to Succeed if There’s an Oral Hearing

A person whose immigration application to the Home Office has been refused sometimes has a right of appeal. Prior to the Covid-19 pandemic, people essentially had a choice. Their appeal could be heard in person, at court, in front of a judge who would listen to their evidence live (referred to as an “oral hearing”). Or they could opt for a judge to decide the outcome without a hearing, by only reading the documents in the case to reach a conclusion (a “paper disposal”).  The immigration tribunals want to decide a substantial number of appeals on the papers during the pandemic, as set out in a recent Pilot Practice Direction. Many practitioners fear this may be indicative of a change of approach even after the lockdown has ended.

Whilst some may be suitable for paper disposal, in immigration cases the truthfulness of witnesses is often the central factor in dispute. It has been of concern that even in such cases, judges are canvassing whether representatives will give consent for matters to go ahead by paper consideration alone. Other areas of law are similarly grappling with issues of fairness in cases affected by the pandemic (in the family context, for example, see Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583). Case law recognises the value and weight of oral argument in court. Statistical data obtained through a Freedom of Information request lend support to these observations. The figures cover 264,000 orals hearings and 17,000 paper disposals decided between 2014 and 2019. They show a marked disparity in outcome between the two forms of appeal.

Read more: Freemovement, https://is.gd/m2zybM



Government’s Stance On Vietnamese Trafficking Victims is Misconceived

Asylos and ARC Foundation recently released a new report, Vietnam: Returned victims of trafficking, about the risks of re-trafficking, state protection and internal relocation for Vietnamese victims of trafficking returned from the UK. The report provides key new evidence which needs to be considered by Home Office decision-makers and tribunal judges dealing with asylum claims by Vietnamese trafficking victims. In my view, the evidence clearly shows that many victims are at serious risk of re-trafficking on return and are unlikely to be able to avail themselves of sufficiency of protection and internal relocation.

The Home Office’s Country Policy and Information Note on Vietnam: Victims of trafficking, released in April 2020, fails to reflect much of this evidence. While the CPIN contains much helpful material, its central conclusion – that many victims will be able to access effective protection from the state – is misconceived and should not be followed.

It is clear from the report that the Vietnamese state’s ability and willingness to provide protection is limited, for a number of reasons: The Vietnamese legal definition of trafficking does not fully comply with international standards. Some victims of trafficking will not be recognised as victims under Vietnamese law and will therefore be unable to access state protection, services and accommodation Access to shelters and rehabilitation assistance requires a police certificate. For many victims this is extremely difficult to obtain. Some sources say that most victims do not get recognised, and survey data suggests that only 1 in 10 victims receive any assistance.

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



Immigration Appeals Much More Likely to Succeed if There’s an Oral Hearing

A person whose immigration application to the Home Office has been refused sometimes has a right of appeal. Prior to the Covid-19 pandemic, people essentially had a choice. Their appeal could be heard in person, at court, in front of a judge who would listen to their evidence live (referred to as an “oral hearing”). Or they could opt for a judge to decide the outcome without a hearing, by only reading the documents in the case to reach a conclusion (a “paper disposal”).  The immigration tribunals want to decide a substantial number of appeals on the papers during the pandemic, as set out in a recent Pilot Practice Direction. Many practitioners fear this may be indicative of a change of approach even after the lockdown has ended.

Whilst some may be suitable for paper disposal, in immigration cases the truthfulness of witnesses is often the central factor in dispute. It has been of concern that even in such cases, judges are canvassing whether representatives will give consent for matters to go ahead by paper consideration alone. Other areas of law are similarly grappling with issues of fairness in cases affected by the pandemic (in the family context, for example, see Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583). Case law recognises the value and weight of oral argument in court. Statistical data obtained through a Freedom of Information request lend support to these observations. The figures cover 264,000 orals hearings and 17,000 paper disposals decided between 2014 and 2019. They show a marked disparity in outcome between the two forms of appeal.

Read more: Freemovement, https://is.gd/m2zybM




Government’s Stance On Vietnamese Trafficking Victims is Misconceived

Asylos and ARC Foundation recently released a new report, Vietnam: Returned victims of trafficking, about the risks of re-trafficking, state protection and internal relocation for Vietnamese victims of trafficking returned from the UK. The report provides key new evidence which needs to be considered by Home Office decision-makers and tribunal judges dealing with asylum claims by Vietnamese trafficking victims. In my view, the evidence clearly shows that many victims are at serious risk of re-trafficking on return and are unlikely to be able to avail themselves of sufficiency of protection and internal relocation.

The Home Office’s Country Policy and Information Note on Vietnam: Victims of trafficking, released in April 2020, fails to reflect much of this evidence. While the CPIN contains much helpful material, its central conclusion – that many victims will be able to access effective protection from the state – is misconceived and should not be followed.

It is clear from the report that the Vietnamese state’s ability and willingness to provide protection is limited, for a number of reasons: The Vietnamese legal definition of trafficking does not fully comply with international standards. Some victims of trafficking will not be recognised as victims under Vietnamese law and will therefore be unable to access state protection, services and accommodation Access to shelters and rehabilitation assistance requires a police certificate. For many victims this is extremely difficult to obtain. Some sources say that most victims do not get recognised, and survey data suggests that only 1 in 10 victims receive any assistance.

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