How long does it take to hear the arguments for and against depriving someone of their liberty? Minutes in the case of pre-trial detention in magistrates' courts.Especially if you are a foreign national woman! Researchers attended hundreds of magistrates' court hearings – the only way of getting quality data on remand since little is published. Three startling findings were that the average time taken by prosecution and defence arguments was very short (average prosecution application for remand took 3 ½ minutes, average defence case 5 ½ minutes), that the defence often did not counter the prosecution's case for remand, and that the reasons given by judges and magistrates for using remand were usually general, not particular to the case. Lawyers interviewed described the remand court system itself as a 'meat grinder', 'factory farm', and 'recipe for post-traumatic stress disorder'.

Foreign national women: All the regular drivers to the over-use of remand affect these women, plus suspicion of the "other" and concerns about "crimmigration". The challenges of being a foreign national woman start in police custody. These women are more likely to be remanded – detained post-charge – in police custody as they do not appear on the usual databases (such as the electoral register) used to check whether defendants meet the legal criteria for bail. Once remanded by the police, any defendant is more likely to be remanded by the court because police remand leads to a fast-track court appearance, which in turn deprives practitioners of the time they need to prepare a bail package – information on accommodation and potential bail conditions. Delays in getting interpreters and their variable quality prejudiced the outcomes of foreign national women.

Risk assessment is always challenging. However, this recent research on the use of remand in England and Wales suggests that the risk posed by defendants is regularly miscalculated. Police are risk-averse and readily recommend denial of bail for those charged. Nevertheless, police have seldom gathered much information about the personal circumstances of defendants. Prosecutors take police recommendations for refusal of bail seriously and do not have time to make up for information gaps. Defence lawyers are not given enough time to secure bail conditions to reassure judges. Moreover, judges and magistrates often take the prosecution case at its highest. Under pressure to get through cases, they may not challenge the prosecution case, particularly if the defence does not present arguments for bail. The Justice Committee has launched an inquiry on the use of custodial remand for adults. Let us hope it highlights the over-use.

Read more: Transform Justice, https://rb.gy/x5ysgo

Immigration Services Commissioner Want’s More Enforcement Powers

The Office of the Immigration Services Commissioner is changing. For one thing, there will soon be no office — or at least, not a physical one. The OISC is ditching its London headquarters and going fully remote, as well as regional. From 1 April, its staff will be assigned to a particular patch and told to get out into the community to find out what’s going on in the immigration advice world.

The Immigration Services Commissioner, John Tuckett, wants a more “proactive” regulator that strikes a better balance between its two core functions: regulating OISC advisers and stamping out the illegal activities of unregulated ones. Regulation will be less prescriptive, involving “partnership working whereby people can assess themselves, maybe carry out self-audit as well as us auditing them — rather than us doing it all as a Big Brother-type approach”.

He’s also after more enforcement powers from the Home Office, the better to “disrupt the criminal activity that’s going on”. The reformed OISC will place less emphasis on expensive criminal prosecutions (which may be just as well, since it doesn’t do that many) and more on warnings, cautions and even restitution to victims of unregulated advice.

Source: Freemovement, https://rb.gy/lxld1y

The UK appears set to criminalise illicit refugee crossings and could ship asylum seekers for processing in other countries after ministers easily saw off a potential rebellion in the Commons over the controversial borders and nationality bill. Despite a number of Conservative backbenchers expressing concerns about aspects of the bill, the government convincingly won a string of votes to restore elements changed in the House of Lords, including the idea of Australian-style third country processing.

Speaking in the debate, Tom Pursglove, the junior migration minister, confirmed that, as restored, the bill could see Ukrainian refugees who arrived without permission removed for processing. He added there was “absolutely no reason” for Ukrainian nationals to resort to illicit crossings. He said the powers to prosecute and jail people who arrive by unofficial means, such as on a small boat across the Channel, would only be used in “egregious cases”, such as someone entering the country in breach of a deportation order.
Read more: peter Walker, Guardian, https://rb.gy/fzcaxw

Home Office Not Required to Help Work Out Whether a Child is British

Unfortunately, the answer is no. The Home Office’s duty is limited to verification of documents.

The appellant AS is a woman from Cameroon who had a daughter in the UK in 2015. The daughter’s father had German citizenship and was exercising his EU treaty rights in the UK. If he had acquired EU law permanent residence by 2015 – and was therefore settled in the UK – his daughter would be a British citizen. Even if he was not settled, his daughter would be a German citizen. Either way, this would have a significant impact on AS’s right to remain in the UK. The couple separated in 2016 and have had no contact with one another since. AS’s attempts to determine her daughter’s nationality for herself proved unproductive, so she asked the First-tier Tribunal to direct the Home Office to verify the immigration status of the father. The tribunal refused.
When the case reached the Upper Tribunal, it initially directed AS to make further enquiries, for instance with the German embassy and other UK government departments. As anticipated, these enquiries were unproductive due to data protection restrictions. AS therefore made another request for the Home Office to be ordered to verify the father’s immigration status, this time to the Upper Tribunal. This application was not determined. The Upper Tribunal felt that AS had not shown that she had “exhausted reasonable enquiries” and so neither the Home Office nor the tribunal could be expected to assist.

Read more: Freemovement, https://rb.gy/gg51pq

Two Thirds of British People Oppose Government’s Borders Bill

A Law Society poll of almost 2,000 people, carried out on 1 March, shows that a clear majority support refugees who enter the UK illegally keeping the same rights as those arriving by government-approved routes. At the heart of the Nationality and Borders Bill is a proposal for differential treatment of refugees based on how they make their way here. The UN Refugee Agency calls this a “direct breach of the Refugee Convention” and the House of Lords has voted to strip it out.

“The Lords have made valuable changes to the Bill, most importantly removing punitive measures that would so severely disadvantage refugees just because they arrive in the UK without prior permission,” Law Society president I. Stephanie Boyce said. “We’re really concerned that if Lords amendments are rejected by the Commons the Nationality and Borders Bill may not comply with international law or uphold access to justice for refugees”. The polling question was “Do you think refugees who have to take clandestine routes to reach safety in the UK should have the same or fewer rights than refugees who are brought here by the government?” Almost two thirds of respondents (65%) said “the same rights”.

Read more: Freemovement, https://rb.gy/98ysac

No “Historical Injustice” in Harsh but Correct Refusal of Immigration Application

Someone correctly refused leave under the Immigration Rules as then in force is not the victim of a historical injustice, and therefore can’t rely on this as strengthening a subsequent Article 8 claim. So ruled the Court of Appeal in Rahaman & Another v Secretary of State for the Home Department [2022] EWCA Civ 310. Essentially, an historic injustice case is one where “there has been a belated recognition that a particular class of persons have been wrongly treated”. Then there is a “historical injustice”, where “an individual has suffered injustice as the result of the wrongful operation or non-operation by the respondent of her immigration functions”.

Undoubtedly, many people who have been refused leave to remain under the Points Based System will feel that they have suffered injustice. Over the years, the pre-2020 PBS gradually grew more and more prescriptive, making it easy for people to overlook the need for a particular document. Section 85A removed the option to produce the missing material on appeal, and the abolition of appeal rights altogether has only enhanced the scope for accidental and irremediable failure.

Read more: Freemovement, https://rb.gy/oqexm

Blanket Seizures of Migrants’ Mobile Phones Unlawful

In a landmark judgment toda, Friday 25th March, the High Court found the Home Office’s blanket policy of seizing mobile phones from all migrants entering the UK by small boat to be unlawful. The policy, operated during 2020, resulted in the seizure of nearly 2000 phones from affected migrants, the indiscriminate downloading of their data, and the retention of the phones for many months, resulting in the affected people being unable to contact family or access asylum documentation they had brought with them. Our clients, along with others, brought a judicial review of the practice – first to get their phones back and then to test whether what the Home Office was doing was lawful at all.

The High Court has ruled today that the phones “were seized and retained unlawfully” and that: “The [Home Office is unable to establish that the claimants were searched” using the statutory power relied on (para 54); “the seizure and retention of the claimants’ mobile phones violated the claimants’ Article 8 [Human Rights Act 1998] rights” (para 135); “the relevant conduct did not have a lawful basis for the purpose of the Data Protection Act 2018. Moreover, the relevant Data Protection Impact Assessments, undertaken by the defendant, were not lawful because…the Assessments did not properly assess the risks” (para 34); Keeping phones “for a minimum period of three months…was capable of giving rise to a disproportionate interference with ECHR rights and data protection legislation” (para 35);

Read more: Deighton Pierce Glynn, https://rb.gy/pzdejw

CoA Dismisses Priti Patel’s Appeal In Test Case Brought by a Victim of Modern Slavery

The Court of Appeal has dismissed the Secretary of State’s appeal against the decision on Linden J in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 Admin in a judgment which opens the door for the Claimant – and potentially thousands of other victims of modern slavery in the same position – to regularise their status in the UK on a temporary basis, pending final resolution of their protection claims based on fear of being re-trafficked.

Having been trafficked illegally into this country, modern slavery leave is often the only means by victims of modern slavery once freed can be lifted out of the “hostile environment” policy as they endure what is typically multi-year delays in the resolution of their protection claims.

The Court of Appeal held in KTT that Linden J was correct to conclude that it is the Secretary of State’s policy to make decisions on modern slavery leave in accordance with the European Anti-Trafficking Convention. The Secretary of State had materially misdirected herself by applying too stringent a test for granting leave than Article 14 required. Construing the Convention, the Court of Appeal decided that Linden J was correct that pursuit of an asylum claim based on re-trafficking risk is capable of being a “stay” which is “necessary owing to their personal situation” in accordance with Article 14(1)(a) of the Convention.

Read more: : Duncan Lewis, https://rb.gy/y8f9z9

Early Day Motion (EDM) 1088: Status Now Campaign

That this House congratulates the Status Now campaign on the two year anniversary of their important campaign;

notes that there are currently an unknown number of persons in the UK who are not citizens and who do not at present have leave to remain in this country, who lack any entitlement to support from the state and are therefore entirely without funds to feed, clothe and house themselves and their families;

recognises that, in nearly all cases, undocumented people are not criminals but simply those who have fallen through the cracks of the Government’s callous hostile environment policies;

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, housing and other essential human rights;

welcomes the recent progress made in Ireland through the Regularisation Scheme for Undocumented people, launched in January 2022, which will offer an amnesty for 17,000 undocumented migrants;

and calls on the Government to follow suit and ensure that all undocumented, destitute and migrant people in the legal process be granted status now, or indefinite leave to remain, to guarantee that every human being, irrespective of their nationality or citizenship can access the essentials to live safely and happily.

EDM 1088: Tabled by Claudia Webbe, on 16 March 2022, https://rb.gy/rcsluo

Put Your MP to Work – Ask Them to Sign EDM 1088

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