French
People Helping Undocumented Migrants Cannot
be Prosecuted for “Crimes of Solidarity”
A French court has scrapped all charges against
an olive farmer who helped migrants enter the
country illegally, the final chapter in a
groundbreaking case that defined so-called
“crimes of solidarity”. Cédric Herrou, who
helped about 200 people cross the border from
Italy into southern France, was given a
four-month suspended sentence in August 2017. He
had brought the destitute migrants home and set
up a camp for them. He was also convicted of
sheltering about 50 Eritreans in a disused
railway building.
France’s constitutional council later said
Herrou’s actions were not a crime under the
“principle of fraternity” as enshrined in
France’s motto: Liberté, égalité, fraternité.
The council, which evaluates the validity of
French laws, ruled that people cannot be
prosecuted for “crimes of solidarity”. In
December 2018, the Cour de Cassation – France’s
court of final appeal – overturned Herrou’s
conviction and sent the case back to the appeals
court in the city of Lyon, which on Wednesday
ruled all the charges were void.
“Reason and the law has triumphed,” said Sabrina
Goldman, a lawyer on the case. “Why focus on
someone who did nothing but help? How can what
he did be regarded as anything other than a
humanitarian act?” Amnesty International said
the ruling would have implications throughout
Europe for the criminalisation of “acts of
solidarity”. “Cédric Herrou did nothing wrong,
he simply showed compassion towards people
abandoned in dire conditions by European
states,” said Amnesty’s Rym Khadhraoui. “Whilst
it is a relief that Cédric Herrou’s ordeal is
now over, he should never have been charged in
the first place.” French law should now be
amended to ensure only people smuggling, which
entails a material benefit, is an offence, and
not humanitarian assistance, Khadhraoui said.
Source: Guardian, https://is.gd/YB4A4I
New
Dublin III Policy Brings Significant Changes
For Family Reunification
On 30 April 2020 the Home Office published an
updated policy on the Dublin III Regulation
which has some significant changes for family
reunification cases. The new policy includes
updates on Article 9, Article 13.2 (entry and/or
stay), Article 17.2 (discretionary clauses),
working with local authorities in response to a
take charge request involving unaccompanied
minors, and on timescales. The most
significant change in the policy relates to what
happens after a take charge request is refused
and the requesting state makes a request for
re-examination.
Article 5.2 of the implementing regulations
provides that the member state that receives a
request for re-consideration shall “endeavour to
reply within two weeks”. But, unlike the
timescale for reply to an initial take charge
request, this is not mandatory and there are no
consequences for failing to meet the deadline.
Until recently, the Home Office was reviewing
re-examination requests as they were made. If
the evidence clearly showed a family link
between the sponsor and the applicant, the Home
Office accepted responsibility for the
applicant’s asylum claim, even if was months
after the reconsideration request was made.
Read more: Freemovement, https://is.gd/Ypk1ep
Home
Office: ‘No Recourse to Public Funds’ Policy
Violation of Article 3
An 8-year-old British boy – supported by his
migrant mother – has won a ruling that the
policy denying families like his access to the
welfare safety net is unlawful. The judges in
the case heard that the boy, whose identity is
protected by an anonymity order and is therefore
known only as W, has had to endure extreme
poverty for most of his life. Under the ‘no
recourse to public funds’ (NRPF) policy
introduced in 2012 by then Home Secretary
Theresa May, W’s mother is blocked from
receiving the same state support that helps
other low-earning parents to survive, including
child and housing benefits, or tax credits. The
court heard that the 8-year-old had been forced
to move school five times and been street
homeless with his mother, due to the Home
Office’s refusal to allow them access to the
social security safety net. The judges were also
told that J, as his mother was known in court,
had been driven into debt and suffered from
serious anxiety.
The judges ruled that the NRPF policy breaches
Article 3 of the ECHR, which prohibits inhuman
and degrading treatment. A detailed judgment and
order will follow, which will set out the steps
the Home Office needs to take to comply with the
judges’ ruling. The High Court challenge was
supported by The Unity Project, a charity set up
three years ago to support families facing
destitution as a result of NRPF. A
detailed judgment and order would follow,
setting out the steps the Home Office needed to
take to comply with the ruling.
Project co-ordinator Caz Hattam says: ‘Even
before the pandemic, this policy was trapping
working families in the most abject poverty,
forcing them into debt, and unsafe, insecure
housing. Since the Covid-19 outbreak, their
situations have become even more dire and
desperate. We provided a wealth of evidence of
how children’s lives are being blighted by this
policy, and we welcome the judges’ recognition
that their families must be given access to the
welfare safety net to prevent them falling into
destitution.’
Adam Hundt, partner at Deighton Pierce Glynn,
the law firm bringing the case, says: “We and
many others have been telling the Home Office
for years that this policy is causing
immeasurable, irreversible damage to so many
people, but particularly children like our
client. The Home Office refused to listen and
ignored all the evidence they were shown, so it
has now been left to the courts to confront the
truth, which is that the policy breaches human
rights law.”
Deighton Pierce Glyn Solicitors, https://is.gd/oGrGQD
Continuing
Conflicts That Create Refugees - May 2020
Deteriorated Situations: Central African
Republic, Democratic Republic of Congo, South
Sudan, Lesotho, India (non-Kashmir), Kashmir,
Sri Lanka, Myanmar, South China Sea, El
Salvador, Yemen, Libya.
Conflict Risk Alerts: Burundi, Sri Lanka, Yemen,
Libya.
Improved Situations: None - Resolution
Opportunities: None
It’s month two of the COVID-19 outbreak, and we
still face more questions than answers.
Uncertainties surround in particular the issue
of why some countries have experienced the virus
far more severely than others. Of notable
interest to Crisis Group, many
conflict-afflicted areas, whose populations are
especially vulnerable, so far appear to have
been spared the brunt of the disease. A good
rundown by The New York Times sheds some light,
though light that ultimately illuminates a
frustrating cascade of riddles: explanations
related to age might account for high incidence
rates in Italy, whose population trends toward
the elderly, but not for high rates in Ecuador,
whose citizens tend to be young, or low ones in
Japan; some countries with warmer, more humid
climates have fared well, others like Brazil
less so; one can point to early lockdown
measures in South Africa as reason for relative
success, but then again Cambodia and Laos did
not follow that route and yet do not seem to
have suffered disproportionately. Insufficient
testing plus delays in the spread of the virus
may be a crucial factor in explaining these
seeming contradictions, and it remains possible
that those who avoided the worst today may
suffer it tomorrow. But that too is speculation.
Read more: Crisis Watch, https://is.gd/JAHALl
You Can
Carry on With an Old-Style EU Law Appeal
Even if Granted Settled Status
The abandonment of an ongoing appeal seems to be
a hot topic for the Upper Tribunal recently,
with the case of Ammari (EEA appeals –
abandonment) [2020] UKUT 124 (IAC) following on
the heels of MSU and Aziz. This time the facts
concern an appeal against a refusal by the Home
Office to issue a permanent residence card,
based on a retained right of residence, and
brought under the EEA Regulations (in this case
the Immigration (European Economic Area)
Regulations 2016). After lodging the
appeal the appellant, Mr Ammari applied for and
was granted “settled status” under the EU
Settlement Scheme, a form of indefinite leave to
remain (ILR). Meantime the First-tier Tribunal,
unaware of the grant of ILR, had considered and
refused Mr Ammari’s appeal against the refusal
to grant a residence card. Mr Ammari was granted
permission to appeal to the Upper Tribunal,
where the abandonment issue reared its head. At
the Upper Tribunal the Home Office conceded that
the First-tier judge had erred in refusing the
appeal, but that this was immaterial since the
grant of ILR served to abandon the appeal. Not
so, said the Upper Tribunal, based on two key
aspects.
Read more: Freemovement, https://is.gd/TqiZ1i
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No
Need to be A “Qualified Person” to Use the
Surinder Singh Route
Tribunals that decide whether someone is
entitled to benefits often have to grapple with
our nightmarish immigration law. HK v SSWP (PC)
[2020] UKUT 73 (AAC) is one such case from the
Administrative Appeals Chambers. It effectively
confirms that a British citizen who returns to
the UK with family members under the Surinder
Singh route is not required to be a “qualified
person” to allow their family a right to reside.
To recap very briefly: the EU law Surinder Singh
route basically gave family members of British
citizens a chance to bypass domestic law, with
its minimum income requirements, English tests
and other onerous criteria. If the British
citizen could show that they had exercised their
free movement rights in another EU country (for
example by working or being self-employed for a
period), their family members could re-enter the
UK with them under EU law.
The government has always had a bee in its
bonnet about Surinder Singh cases. As time went
on, the Home Office made it more and more
difficult for people to use the Surinder Singh
route by introducing requirements which were
clearly unlawful. For example, you had to show
you transferred your “centre of life” to the EU
country you moved to, and the British citizen
had to show they were a “qualified person” for
the purposes of EU free movement law after
coming back to the UK. In September 2019,
nearly six years after the centre of life test
came into force, the Upper Tribunal found the
test to be incompatible with EU law. The HK case
picks apart another of these unlawful
requirements, the supposed need for the British
citizen to show they were a qualified person on
their return.
Read more: Freemovement, https://is.gd/FpzPxt
High
Court Orders SSHD to Give Asylum Seeker
Accommodation and Support to Self-Isolate
During Corona Pandemic
In this case unusually, the High Court has
issued a judgment following an application for
an interim order. The matter concerns the
accommodation of asylum-seekers who display
Covid-19 symptoms, who bears the responsibility
for accommodating asylum-seekers who are
symptomatic, and the communication of policy and
practice in this area.
The background to the case is that AQS is an
asylum-seeker in his early twenties who has yet
to receive a decision on his claim. On making
his asylum claim he applied for asylum support
as he had no income, savings or housing and was
found to be eligible for support under s95
Immigration and Asylum Act 1999. He was placed
in accommodation in Harrow, Middlesex. He
reports symptoms of mental illness as a result
of his experiences in his home country but has
yet to access treatment.
While in asylum accommodation, he was attacked
by a fellow resident and suffered injuries to
his face and body. The police arrested the other
party but he was later released. AQS was fearful
of staying in the accommodation and requested a
transfer. Migrant Help, who have the contract to
provide asylum support initially refused to
rehouse AQS but following an application for
judicial review, provided AQS with alternative
accommodation.
It is within this context that the current
litigation arises. AQS was fearful of sharing
accommodation but was required to share a room
with another individual who started to display
symptoms of Covid-19. AQS raised concerns with
the accommodation provider who moved the other
person elsewhere but within a day or so, AQS
himself also became unwell with symptoms of
Covid-19. He expressed his distress that he had
been exposed again to harm to the accommodation
provider, the argument escalated and property
was damaged. The police were called and evicted
AQS from the property. Both the police and the
accommodation provider were aware that AQS was
conspicuously unwell. He had not been served
with any official eviction notice.
Read more: Duncan Lewis, https://is.gd/ReXqud
Home
Office Accused of Pressuring Judiciary Over
Immigration Decisions
The Home Office has been accused of interfering
with the independence of the judiciary after it
emerged that judges were asked to provide
written explanations for a rise in the number of
detainees released from immigration centres
during the Covid-19 pandemic. In a letter to the
president of the Tribunal, Immigration and
Asylum Chamber dated 29 April 2020, the Home
Office’s head of appeals, James Stevens, wrote:
“The numbers of those in detention have reduced
very significantly since the start of this
emergency.” He went on to say: “The Home Office
is somewhat surprised at the level of grants of
bail in recent weeks.” Official figures record
1,225 people in detention centres on 1 January
and 368 at the latest count – a reduction of
almost three-quarters.
Stevens outlined the ways in which the Home
Office had responded to the risks coronavirus
posed to detainees, before adding: “Where bail
is granted I would ask you to consider whether
immigration judges could provide written reasons
for this.” Judges are not required by law to do
this. Stevens wrote: “While I realise this is
not a requirement under the procedure rules, it
would assist the Home Office to fully understand
the reasons why bail has been granted.”
In a response dated 1 May, Michael Clements, the
chamber’s president, issued a robust rejection
of the Home Office’s request. “As independent
judiciary we decide bail applications in
accordance with the law, which includes the
guidance which has been issued. There has been
no change in either the law or the guidance,” he
wrote. “The primary function of detention is
accordingly to facilitate removal, and unless
there are very powerful reasons to the contrary
bail should be granted if there is no removal of
the bail applicant within the reasonably
foreseeable future.”
Read more: Diane Taylor, Guardian, https://is.gd/Hn25XS
Vietnam:
Returned Victims Of Trafficking: Issues
Affecting Likelihood of Re-Trafficking
The critical need to prioritise country of
origin information production on children and
young people’s risk profiles has become
increasingly apparent as lawyers are
consistently raising concerns to us about the
scarcity of available information in relation
to child-specific persecution and harm acting
as a barrier to proper consideration of young
people’s protection claims.
This is especially relevant in the UK as
Vietnamese nationals regularly form one of the
top ten largest groups of asylum seekers in
the UK. They also consistently feature in the
top three nationalities of victims referred to
the UK National Referral Mechanism (NRM), with
numbers consistently increasing over the past
few years. Existing COI focuses mainly on the
migration route and experience en route or in
the country of final destination rather than
on the situation upon return for victims of
trafficking.
Our report combines relevant and timely
publicly available material with new
information generated by interviewing six
individuals with authoritative knowledge on
the topic. We hope that the report will help
fill the gap in the COI literature and thus
contribute to a more transparent and informed
debate about the topic. You can access the
report here and the associated press release
here.
Read more: Asylum Research Centre (ARC),
https://is.gd/7CJlYg
Sudita
Keita v. Hungary - Difficulties
Regularising Leave to Remain Violation of
Article 8
The applicant, Michael Sudita Keita, is a
stateless person (of Somali and Nigerian
descent) who was born in 1985 and lives in
Budapest.
The case concerned the difficulties in
regularising his legal situation in Hungary
over a period of 15 years.
Mr Sudita Keita arrived in Hungary in 2002,
submitting a request for recognition as a
refugee. The immigration authorities
rejected it the same year.
He has continued to live in the country
without any legal status, apart from one
period from 2006 to 2008 when he was granted
a humanitarian residence permit as an exile
because he could not be returned to Somalia
while the civil war was ongoing and the
Nigerian embassy in Budapest had refused to
recognise him as one of its citizens.
The authorities reviewed his exile status
in 2008 and ordered his deportation in 2009,
but it was not enforced.
Ultimately, in 2017, the Hungarian courts
recognised him as a stateless person. His
request had at first been refused because he
did not meet the requirement under the
relevant domestic law of "lawful stay in the
country". That requirement was, however,
found unconstitutional in 2015.
He submits that he has been living with his
Hungarian girlfriend since 2009 and
completed a heavy¬machinery operator
training course in 2010.
Relying in particular on Article 8 (right
to respect for private and family life) of
the European Convention on Human Rights, Mr
Sudita Keita complained about the
authorities' protracted reluctance to
regularise his situation, alleging that it
had had adverse repercussions on his access
to healthcare and employment and his right
to marry.
Violation of Article 8
Just satisfaction: 8,000 euros (EUR) for
non-pecuniary damage and EUR 4,000 for costs
and expenses
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