Children’s
Right to Live in the Community
Children are placed into institutions because of
poverty, social deprivation and poor parenting
skills, carer and child illness and disability,
natural and human-made disasters, and child
abuse and neglect. The right to live in the
community is an important human rights topic
affecting a huge number of children. In 2015, it
was estimated that in the region of 5-6 million
children were living in institutions worldwide,
the majority being in low-income and
middle-income countries.
The Lancet has published a set of papers on
institutionalisation and deinstitutionalisation
of children. They will receive a lukewarm
response. The Lancet has defined institutions as
any publicly or privately managed and staffed
collective living arrangement for children that
is not family based, and includes small-scale
group homes. This definition would include
hospitals such as “assessment and treatment
units” in the UK, recently the subject of
reports by the Parliamentary Joint Committee of
Human Rights which published reports in November
2019 and this month.
One of the key concerns across central and
eastern Europe was the number of
institutionalised children with disabilities.
Institutions do not just warehouse disabled
children: they cause disability. In the Lancet
article that surveys the literature on effects
of institutionalisation on child development, it
is reported that at least 80% of
institutionalised children are below the mean of
comparison groups in physical growth and
cognitive development.
The health and social arguments are clear:
“when children leave institutions and are placed
in family-based alternatives (adoption, kinship,
or foster care), the situation rapidly
improves—striking catch up is seen across all
domains. Moreover, even children who have been
exposed to severe deprivation can develop secure
attachments with their new parents from adoption
or foster placements.”
Read more: Doughty Street Chambers,
https://is.gd/9DW9ww
EDM 658:
Leave to Remain Status
That this House notes that currently in the UK
there are an unknown number of persons who are
not UK citizens, who do not have leave to remain
in this country, who lack any entitlement to
support from the state, who are therefore
entirely without funds to feed, clothe and house
themselves and their families and who are unable
to comply with Government guidance on
self-isolation and social distancing; and
considers it essential that the Government takes
immediate action to ensure that leave to remain
in the UK is granted to all such persons who are
within the UK but are not citizens, irrespective
of their nationality or immigration status, so
that they can access healthcare, food and
housing to enable them to adhere to Government
advice on social distancing, ensure the health
of themselves and their families and help
protect the health of all people in the UK.
Parliament: Tabled 24 June 2020, https://is.gd/wXdUGd
Put Your MP to Work – Ask Them to Sign EDM
658
To find your MP go here: https://www.writetothem.com/
When is a
Foreign Criminal Not A Foreign Criminal?
That is the question answered by the Upper
Tribunal in SC (paras A398 – 339D: ‘foreign
criminal’: procedure) Albania [2020] UKUT 187
(IAC). The appellant was convicted of murder and
sentenced to 15 years’ imprisonment. So he is,
by any reasonable definition, a criminal. He is
a citizen of Albania — so clearly foreign. But
he is not, from a legal perspective, a “foreign
criminal”. This is because his conviction was in
Albania.
Offences outside the UK:As regular readers of
this blog will know, there are strict rules set
out in Part 5A of the Nationality, Immigration
and Asylum Act 2002 for those who seek to resist
deportation on the basis of their private and
family life under Article 8 of the European
Convention on Human Rights. This regime applies
to anyone who is a “foreign criminal”, as
defined in section 117D(2). That definition
requires a criminal conviction in the UK. There
was no such conviction here — only a murder
conviction in Albania. As such, these provisions
did not apply. Paragraphs A398 to 399D of the
Immigration Rules also regulate deportation and
Article 8. The Upper Tribunal had previously
flip flopped on whether the use of the phrase
“foreign criminal” in the Rules has the same
meaning as in section 117D(2). This conflict has
now been resolved in favour of using the same
definition.
Read more: Freemovement, https://is.gd/QixyAp
Number of
Forcibly Displaced Worldwide Breaks All
Records
The U.N. refugee agency reports more than nine
million people were newly displaced by
persecution and conflict in 2019, bringing the
total number of forcibly displaced around the
world to a record-breaking 79.5 million
people. These unprecedented figures appear
in the agency’s annual Global Trends report,
released in advance of World Refugee Day on June
20. More than one
percent of humanity or one in every 97 persons
on earth is now uprooted. The U.N. refugee
agency considers this a matter of great
concern. It notes most of the nearly 80
million uprooted are displaced inside their own
countries, while 29.6 million are refugees, who
have sought asylum in other
countries. Despite commonly
held perceptions, U.N. High Commissioner for
Refugees, Filippo Grandi, says most refugees do
not seek asylum in richer countries, but flee to
nearby countries. He says 85 percent are
being hosted by poor developing
countries.
The UNHCR chief says only five countries
generate 68 percent of the world’s
refugees. “Syria, Venezuela,
Afghanistan, South Sudan, and Myanmar. You
know what this means. If crises in these
countries were solved, 68 percent of the global
forced displacement would probably be on its way
to being solved," he said. Grandi says conflict
in Democratic Republic of Congo, Africa’s Sahel
region, Yemen and Syria account for most of the
nine million newly displaced last year. He
says he is particularly worried about the
dramatic drop in the number of refugees who are
able to return home or find countries of
resettlement. In
the 1990s, he notes an average 1.5 million
refugees were able to return home each
year. This number, he says, has now
declined to fewer than 400,000 a year.
Read more: Lisa Schlein, https://is.gd/NP9VAF
Home Office to Face Legal Challenge Over
'Digital Hostile Environment'
Immigrants’ rights campaigners are to bring the
first court case of its kind in British legal
history in an attempt to turn off what they
claim is a decision-making algorithm that
creates a “hostile environment” for people
applying for UK visas online. The Joint Council
for the Welfare of Immigrants (JCWI) has been
granted a judicial review to challenge the Home
Office’s artificial intelligence system that
filters UK visa applications. They claim the AI
programme is designed to discriminate against
applicants from certain nations. In their
submission to the high court the JCWI said the
algorithm created three channels for applicants
including a “fast lane” that would lead to
“speedy boarding for white people” to enter the
country.
The rights group said applications from people
holding suspect nationalities received a higher
risk rating. These applications were subjected
to far more intensive scrutiny by Home Office
officials, took longer to reach a decision and
were much more likely to be refused, the JCWI
said. It claims that this results in racial
discrimination and therefore breaches the 2010
Equality Act. The JCWI will argue in the
judicial review case that the AI streaming tool
is also too opaque and secretive. They point to
the existence of a secret list of suspect
nationalities. So far, the Home Office has
refused to provide the JCWI with meaningful
information about the algorithm in their
pre-legal action correspondence. In this action
the JCWI and a new group campaigning for justice
in the technology sector, Foxglove, will ask the
court to declare that the streaming algorithm is
unlawful. They will urge the court to order a
halt to its use pending a substantive review of
the AI decision-making system.
Read more: Henry McDonald, Guardian, https://is.gd/3o72Ag
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Deadly
Impact of Hostile Environment Policies on
Undocumented Migrants
From our prior knowledge and experience
we anticipated that the hostile environment
agenda would be implicated in pushing
undocumented migrants overcrowded housing and
exploitative “no work, no pay” jobs that make it
impossible for them to keep safe in the pandemic
and lockdown. It is for this reason that the
Status Now Open Letter call was sent to Prime
Minister Johnson on 27th March. In this
research, some respondents were paid as little
as £2/hr as live-in domestic workers, and one
had lived in a 5-bedroom flat with 13 other
people, all of whom had COVID-19 symptoms in
March.
The report concludes that hostile environment
policies “constitute a danger to public health
by present-ing people with the impossible choice
of going to work and risking their health and
the health of all those they are in contact
with, or otherwise falling into destitution.”
Its key recommendations are:
• Regularise all undocumented migrants
• End NHS charges and data-sharing
• End hostile environment policies putting the
public in danger
• Raise awareness of migrants’ rights
Contact for more details, the full report, and
interview requests:
Susan Cueva, Trustee, Kanlungan Filipino
Consortium
info@kanlungan.org.uk / 073 9779 6238
Asylum Seeker
Set to Challenge “Illusory” Right to Work
Rules
The High Court has granted permission
for a judicial review challenge to the rules on
when asylum seekers are allowed to work in the
UK. People waiting over a year for an initial
decision on their bid for refugee status can
apply for permission to get a job, but only for
roles that are on the Shortage Occupation List.
The claimant in this case had previously managed
to convince the Home Office to consider allowing
her to work in a non-shortage role, according to
her solicitors at Duncan Lewis. But the
department’s answer was no: officials decided
that she “had not raised any exceptional
circumstances to justify discretion being
granted in her favour”. That kicked off a fresh
legal challenge, which argues among other things
that the decision to refuse permission to work
outside the Shortage Occupation List was
“irrational, unreasonable and breaches the
Claimant’s rights under Article 8” of the
European Convention on Human Rights.
Sulaiha Ali of Duncan Lewis told Free Movement
that “the current rules only create an illusory
right to work for asylum seekers, as very rarely
will they be able to work in a job listed in the
Shortage Occupation List”. Mr Justice Pepperall,
granting permission for the case to proceed,
observed that the Home Office had “no clear
policy as to the circumstances in which such
exceptional permission might be given”.
Read more: Freemovement, https://is.gd/RjNtrG
Scrap UK Rule
That Has Left 1m Migrant Workers at Risk of
Destitution
Immigration rules that have left 1
million migrant workers in the UK at risk of
destitution because they cannot claim universal
credit should be suspended on public health
grounds during the pandemic, a cross-party group
of MPs has recommended. The work and pensions
select committee said the no recourse to public
funds (NRPF) rule – which hit the headlines
recently when Boris Johnson appeared not to be
aware of its existence – meant many foreign
nationals faced a choice of staying at home in
hardship or going to work and risking catching
or spreading the virus. “During a pandemic it
cannot be in the public interest to expect
people, some of whom are key workers and
frontline medical staff, to comply fully with
restrictive public health guidance while
simultaneously denying them full access to the
welfare safety net,” the report said.
The NRPF rule, which was introduced in 2012 and
prevents migrant workers with leave to remain in
the UK from claiming many social security
benefits, was ruled unlawful by the high court
in May following a case brought by a
eight-year-old boy whose family had been left in
extreme poverty by the rule. Ministers have been
under pressure to set out how the government
will support people with NRPF since the prime
minister unexpectedly told a meeting of the
Commons liaison committee in May that he thought
the NRPF scheme should be reviewed. “We will see
what we can do to help, Johnson said. The
recommendation came as part of the committee’s
inquiry report into the Department of Work and
Pensions (DWP) response to coronavirus. It
concluded that while the DWP should be commended
for its rapid response to the pandemic, gaps in
the safety net had left “huge numbers” of people
struggling with daily living costs during the
crisis.
Read more: Patrick Butler, Guardian, https://is.gd/XwnkBh
What, if Any,
Legal Liability Does the UK Government Have
For Deaths Caused by Covid-19?
‘The government has faced sustained criticism of
many aspects of its handling of the pandemic.
Central to that criticism has been the question
of whether the government’s decision making has
made the requirement to protect life secondary
to economic considerations. What has to be faced
is the shockingly high fatality rate in the
United Kingdom among care home residents and
those working on the front-line, including
transport workers. That in itself establishes a
prima facie case against those responsible for
making critical decisions as the pandemic has
engulfed us. All the indications are, however,
that any question of legal liability at a
governmental level will be firmly resisted’
[Failure to provide PPE may amount to a criminal
offence under the Corporate Manslaughter and
Corporate Homicide Act 2007]
[CMCHA S.3 is intended to protect government
departments from criminal liability for
political decision making]
“If the government were an employee of mine I
would have sacked them for gross negligence” –
so said Anita Astley, manager of Wren Hall
nursing home in Nottinghamshire, where 10
residents died from Covid-19 and 48 carers
caught the virus in a three week period[1]. Ms
Astley’s complaint poses in stark terms a
question which has been circulating since the
full and devastating extent of the consequences
of the pandemic have become clear: what,
if any, legal liability does the state have for
deaths caused by Covid-19?
The government has been doing its utmost to
deflect any suggestion that it may bear
responsibility for the consequences of its
handling of and failure to prepare for the
pandemic. Principally this has been achieved
through a call for unity in a time of crisis, to
the extent that even muted questioning of
government actions by the opposition has been
criticised, as witnessed by the Health Secretary
Matt Hancock’s suggestion to Rosena Allin-Khan
M.P. that she changes her tone when, as a front
line A & E doctor as well as a shadow
minister, she had the temerity to ask direct
questions about the government’s strategy for
contact tracing and testing on the floor of the
House and the Prime Minister’s rebuke to
criticism of his handling of the pandemic by
Keir Starmer, that this amounted to undermining
trust in the government. There have also been
indications that the buck is going to be passed
to the government’s scientific advisers. More
sinisterly, there is a suggestion that the
government’s decision taken on 19th March to
reclassify Covid-19 from a High Consequence
Infectious Disease to a Low Consequence
Infectious Disease[2], while at the same time
the Health and Safety Executive downgraded the
classification of Covid-19 under the Control of
Substances Hazardous to Health Regulations 2002
from a Group 4 to a Group 3 biological agent,
was taken in order to facilitate the decanting
of elderly Covid-19 patients from hospitals into
care homes.
Read more: Henry Blaxland Q.C, Garden
Court Chambers, https://is.gd/cePonv
Rules on
revocating a Deportation Order
The Secretary of State has the power to revoke a
deportation order under section 5(2) of the
Immigration Act 1971. The Immigration Rules set
out the process that decision-makers are
expected to follow: 390. An application for
revocation of a deportation order will be
considered in the light of all the circumstances
including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of
revocation;
(iii) interests of the community, including the
maintenance of effective immigration control;
(iv) the interests of the applicant, including
any compassionate circumstances.
390A Where paragraph 398 applies the Secretary
of State will consider whether paragraph 399 or
399A applies and if it does not, it will only be
in exceptional circumstances that the public
interest in maintaining the deportation order
will be outweighed by other factors. Paragraph
390A ensures that applications for revocation
are considered in the same way as claims that
deportation would breach someone’s Article 8
rights.
Read more: Freemovement, https://is.gd/Bfsy3b
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