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Immigration
and Article 8: What Did we Learn in
2019?
Another year passes, with another series of higher court
cases on human rights in the immigration
context.
As in previous years, the courts
in 2019 were particularly concerned with
Theresa May’s attempts as Home Secretary to
codify the Article 8 proportionality
exercise into legislation. Those
changes have had a significant impact on the
approach of tribunals to appeals against
deportation and removal on grounds of
private and family life. Judges now
have to apply a series of prescribed tests
under the immigration rules, before going on
to consider whether there are exceptional
circumstances requiring a grant of leave.
The
general
principles having already been established by
the Supreme Court (see e.g. in Agyarko [2017]
UKSC
11, KO (Nigeria) [2018] UKSC
53, and Rhuppiah
[2018] UKSC 58, 2019 saw the Court of
Appeal flesh out those principles and clarify
the relevant legal tests.
So,
for
your ease of reference, here are 10 things we
learnt about human rights in theimmigration
context in 2019.
Read
more: UK Human Rights Blog, https://is.gd/nBnbUt
Swansea Charity Worker Who Fled DR Congo Wins
Asylum Fight
A
charity worker who was threatened with
deportation to the Democratic Republic of
Congo has won his fight to stay in the UK.
Otis Bolamu had said his life would be in
danger if he was forced to return to his
home country. He was detained in December
2018, but was released
on
appeal after thousands signed a petition
to let him stay. His lawyers,
Duncan Lewis, confirmed he had been "finally
granted asylum".
In
a message on Facebook Mr Bolamu thanked
the
people of Swansea, where he volunteers at an
Oxfam charity bookshop. "I just want to stop
and say thank you for the power of people,"
he said. People were so kind, campaigning
for me to come out of detention. And when I
came back, they did not stop. Still they
helped me and supported me. They said we
will not rest. We will not celebrate until
he has refugee status. Now I have it. Now we
can party."
Read
more: BBC News, https://is.gd/sAWJf
Legal
Challenge to Gap in Support for Victims
of Trafficking Following Grant of
Refugee Status
Once an individual is granted refugee status, they
usually have a non-extendable 28 days in
which to leave asylum support, as per Home
Office policy. As it often takes in excess
of 35 days from application for an
individual to receive mainstream benefits,
this can lead to a gap in support with
potentially serious consequences for
individuals.
We recently
issued proceedings in relation to this gap
in support for a confirmed victim of
trafficking, who was receiving support by
way of asylum support, and who was to lose
his accommodation after being granted
refugee status, with no alternative being
put in place. The SSHD conceded that the
duty to support and assist confirmed
victims of trafficking does not cease
following a grant of asylum, and instead
continues on a needs basis, as required by
Article 12 European Convention Against
Trafficking. In our client’s case this
requires the SSHD to continue the client’s
asylum support until alternative support
is put in place. Please read the order and statement of
reasons to this effect.
While there
remains a gap in support for non-victims
of trafficking confirmed asylum seekers,
which Duncan Lewis is also currently
challenging with counsel, Raza Halim of
Garden Court Chambers, we hope that this
case will enable us to ensure that there
is no gap in support for victims of
trafficking as they move between asylum
support to other forms of support.
Read
more: Duncan Lewis, https://is.gd/1Cd4mi
Climate
Refugees Can't be Returned Home, Says
Landmark UN Human Rights Ruling
It
is unlawful for governments to return people
to countries where their lives might be
threatened by the climate crisis, a landmark
ruling by the United Nations human
rights committee has found. The
judgment – which is the first of its
kind – represents a legal “tipping point”
and a moment that “opens the doorway” to
future protection claims for people whose
lives and wellbeing have been threatened due
to global heating, experts say. Tens of
millions of people are expected to
be displaced by global heating in the
next decade.
The
judgment relates to the case of Ioane
Teitiota, a man from the Pacific nation of
Kiribati, which is considered one of
the countries most
threatened by rising sea levels. He applied
for protection in New Zealand in 2013,
claiming his and his family’s lives were at
risk. The committee heard evidence of
overcrowding on the island of South Tarawa,
where Teitiota lived, saying that the
population there had increased from 1,641 in
1947 to 50,000 in 2010 due to sea level
rising leading to other islands becoming
uninhabitable, which had led to violence and
social tensions.
Read
more: Kate
Lyons, Guardian, https://is.gd/fel
Asylum Research
Consultancy Country of Information Update
Vol. 209
This
document provides an update of UK Country
Guidance case law, UK Home Office
publications and developments in refugee
producing countries (focusing on those which
generate the most asylum seekers in the UK)
between 7 and 20 January 2020.
https://is.gd/YZMzEG
Chinese Government Poses Global Threat to
Human Rights
The
Chinese government is carrying out an
intense attack on the global system for
defending human rights, Kenneth Roth,
executive director at Human Rights Watch,
said today in releasing Human Rights Watch’s
World
Report
2020. Decades of progress
that have allowed people around the world to
speak freely, live without fear of arbitrary
imprisonment and torture, and enjoy other
human rights are at risk, Roth said.
At
home, the Chinese government has created a
vast surveillance state in its efforts to
achieve total social control. It is now
increasingly using its economic and
diplomatic clout to fend off global efforts
abroad to hold it to account for its
repression. To preserve the international
human rights system as a meaningful check on
repression, governments should band together
to counter Beijing’s attacks. Total Number
of Incidents of Self-Harm Requiring Medical
Treatment
Read
more: Human Rights Watch, https://is.gd/cnSfGH
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The
Children Who Can’t Afford To Be British
The
Home Office charges £1,012 to children born in
the UK who need to apply for British
citizenship. The High Court recently found
this to be unlawful but for these children,
the story remains the same.
Daniel
first noticed it when his friends started
talking about the holidays they’d been on. It
got worse when the school he was at began
taking its pupils on trips abroad. Unlike his
friends, Daniel, who is 13-years old, doesn’t
have a passport, so even if his family could
afford to go abroad, he wouldn’t be able to
join them. Unlike his friends, Daniel isn’t a
British citizen, even though he was born here
and has never been anywhere else in his life.
“Because he isn’t a citizen he feels like an
outsider”, says his father Femi (names have
been changed), who came to this country from
Nigeria almost 15 years ago, “there are
discussions he can’t be involved in”.
Daniel
is not an immigrant. He was born in the UK and
because he has spent more than ten years in
Britain he has the right to go through the
registration process and become a British
citizen. He loves playing football and his
father says he likes the school he goes to in
Wigan, where they live. That he isn’t already
a British citizen is surprising to many. The
problem for Daniel, his family and many
thousands of others living in low to middle
income households is the £1012 fee the Home
Office charges children to register as British
citizens. The current administrative cost to
the Home Office of processing a child’s
registration fee is £372, leaving a £640
profit on each application. Despite being
nothing to do with immigration, this money
subsidises the immigration system.
Read
more: Open Democracy, https://is.gd/5a1qub
Disclosure
of Documents From Asylum Proceedings Into
Private Law Proceedings
(R
v Secretary of State for the Home
Department (Disclosure of Asylum
Documents) [2019] EWHC 3147 (Fam)
Judgment
has been handed down in the following
reported case in which Bindmans’ family team
represented the father. The judgment gives
important guidance as to when disclosure
from immigration proceedings can be
disclosed in private law proceedings about
children in the family court. The court
considered the following question:
Do
the public interest policy and principles
of asylum proceedings prevent the family
court from ordering disclosure and
inspection of documents into proceedings
under the Children Act 1989?
The
court determined that the answer was no:
public interest policy principles would not
prevent the family court from ordering
disclosure of asylum documents within
private law proceedings in an appropriate
case.
Summary:
Within
this ongoing case, the father sought
disclosure of documents pertaining to the
mother’s previous asylum claim, of which she
was successful on appeal from the upper
tribunal. The father submitted that the
material was relevant, contemporaneous
evidence that he should be entitled to rely
on as part of the fact-finding process
within private law proceedings, in order to
challenge serious allegations made against
him by the mother, which also formed part of
her asylum claim.
The
mother refused to disclose the documents on
the basis of confidentiality and the
Secretary of State for the Home Department
intervened and opposed disclosure on public
interest grounds. The same issue in the
current case was considered within previous
proceedings pursuant to the 1980 Hague
Convention and disclosure was originally
refused: H (A Child) [2019] EWHC 1509 (Fam).
Read more: Hannah
Marshall, Bindmans Solicitors, https://is.gd/oiM0s2
Immigration
Detention Statistics Q3 2019
| Total
Number of Incidents of Self-Harm
Requiring Medical Treatment
|
|
| Q3 2019 |
July |
August |
September |
Total |
| Brook
House
|
7 |
2 |
3 |
12 |
|
Colnbrook
|
10 |
19 |
13 |
42 |
|
Dungavel
|
2 |
0 |
1 |
3 |
|
Harmondsworth
|
23 |
14 |
5 |
42 |
|
Morton
Hall
|
6 |
15 |
6 |
27 |
|
Tinsley
House
|
3 |
1 |
0 |
4 |
|
Yarl's
Wood
|
5 |
1 |
3 |
9
|
Sub Totoal
|
|
|
|
139 |
Number of
individuals recorded as refusing meals in
immigration removal centres during Q3 2019
| Q3 2019 |
July |
August |
September |
Total |
| Brook
House |
0 |
1 |
8 |
9 |
| Dungavel |
1 |
1 |
2 |
3 |
| Morton
Hal |
1 |
1 |
3 |
5 |
| Tinsley
House |
1 |
0 |
2 |
3 |
| Yarl's
Wood |
0 |
0 |
1 |
1 |
|
|
|
Sub Tota |
21 |
|
Individuals
Managed
as Being at Risk of Self-Harm
|
|
Q3
2019
|
July |
August |
September |
|
|
Brook
House
|
38 |
17 |
23 |
78 |
|
Colnbrook
|
35 |
36 |
30 |
101 |
|
Dungavel
|
5 |
2 |
4 |
11 |
|
Harmondsworth
|
64 |
74 |
41 |
179 |
|
Morton
Hall
|
26 |
34 |
39 |
99 |
|
Tinsley
House
|
12 |
6 |
7 |
25 |
|
Yarl's
Wood
|
22 |
17 |
16 |
55 |
|
Manchester
STHF
|
3 |
3 |
3 |
9 |
|
|
|
Sub Total |
557 |
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