Continuing Conflicts That Create Refugees - March 2022

Deteriorated Situations: Chad, Zimbabwe, Guinea-Bissau, Libya

Serious Deterioration: Ukraine, Belarus

Improved Situations: none - Resolution Opportunities: None

Conflict Risk Alerts for March: Zimbabwe, Ukraine, Iran, Libya

Moscow launched a full-scale invasion of Ukraine, forcing hundreds of thousands to flee. As Russian forces continue their assault in the face of resistance, the conflict could further intensify, with major repercussions beyond Ukraine’s borders.

Marathon negotiations involving Iran, the U.S. and other world powers reached an inflection point that will determine whether the 2015 nuclear deal is revived or collapses.

After Libya’s eastern-based parliament announced it had appointed a new prime minister and approved his cabinet, the country faces a high risk of institutional division with two rival governments vying for power.

Deadly political violence in Zimbabwe, which erupted in February, could escalate around by-elections scheduled for 26 March.

A controversial phone call discussing plans to destabilise Chad surfaced on social media, fuelling tensions between N’djamena and Bangui, and straining progress to hold a pre-dialogue initiative between Chadian authorities and armed groups.

Gunfire near the government palace in Guinea-Bissau gave rise to competing narratives and exposed the fragility of President Sissoco Embaló’s seat.

Aside from the conflict situations we regularly assess, we tracked notable developments in Benin, Bosnia and Herzegovina, and the Nile Waters.

Read more: International Crisis Group, https://rb.gy/uerrfx

Can Ukrainians Take Refuge in the UK? Immigration Concessions

Last week, in response to what was then the imminent threat of a full-scale Russian invasion of Ukraine, the Home Office brought out immigration concessions aimed at protecting the family members of British citizens in Ukraine. Those concessions have been expanded in light of the invasion and new ones added to cover Ukrainians already in the UK. The department also seems to be reviewing its policy on asylum claims by Ukrainian citizens who are already in the UK or who make their way here in future. This article, written with Katherine Soroya, covers both these possible routes to safety in the UK. The situation is changing very quickly and fresh government announcements may render this information out of date. Any changes since the date of this article should be reflected on the main Home Office web pages on the immigration and asylum position for Ukrainians.

There are family visa concessions in place for people of any nationality who usually live in Ukraine with a British family member (i.e. they don’t have to be a Ukrainian citizen). The British sponsor must be the applicant’s:

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

Women at Risk of Deportation Being Refused In-Person Legal Advice

The Home Office is being taken to court over claims women at risk of deportation are being refused in-person legal advice. The campaign group Women for Refugee Women are seeking a judicial review over claims women held at Derwentside Immigration Removal Centre have only been able to access legal advice by telephone. This is despite assurances from the Home Office that in-person advice, initially unavailable due to the pandemic, could be accessed ‘on request’. The group say they are unaware of anyone being able to access face to face visits since the centre opened in December.

The charity say that lack of access to in-person legal advice harms women in detention, in particular considering research shows the majority of women in immigration detention are survivors of serious human rights abuses, including torture, rape and trafficking. They are concerned survivors will have difficulties disclosing what has happened to them to someone they’ve never met, over the phone, and this may have significant negative consequences in terms of their legal case.

Read more: Samantha Dulieu, Justice Gap, https://rb.gy/egmg4p

Unfairness Required to Set Aside Appeals Decided on Paper Under Unlawful COVID-19 Process

The background to the case was an attempt by the President of the Upper Tribunal (Immigration and Asylum Chamber), Mr Justice Lane, to ensure that work didn’t grind to a halt in the early stages of the pandemic. On 23 March 2020, with in-person hearings suspended and remote ones not yet established, he issued a guidance note on the circumstances in which Upper Tribunal judges could determine cases on the papers – that is, without an oral hearing. A judicial review brought by the Joint Council for the Welfare of Immigrants resulted in a finding by Mr Justice Fordham that the guidance was unlawful because it communicated an “overall paper norm”, risking unfairness.

What, then, should happen to the people whose appeals had been determined on the papers under the guidance note before the decision in JCWI? That was the issue for the Court of Appeal in Hussain. Mr Hussain and anonymous appellant GA, whose cases were otherwise unconnected, had both been granted permission to appeal to the Upper Tribunal after losing in the First-tier. Both had requested an oral hearing. In each case, a judge determined the case on the papers and found no error of law in the First-tier Tribunal’s decision. They appealed.

?Read more: Freemovement, https://rb.gy/sb1e3v

Home Office Challenge To Sri Lanka Country Guidance Fails

The Home Office has been refused permission to appeal against the latest Sri Lankan country guidance decision. The case is KK and RS (Sri Lanka) v Secretary of State for the Home Department [2022] EWCA Civ 119. Last year, in KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 130 (IAC), the Upper Tribunal gave guidance on Sri Lankan asylum claims based on actual or imputed political opinion. It confirmed the continuing applicability of the previous country guidance — GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) — as well as clarifying what exactly a “significant role” in Tamil separatism means and addressing the likely attitude of the Sri Lankan government to involvement with diaspora organisations such as TGTE. It also considered the position for those who would wish to express separatist views on return to Sri Lanka, but would refrain from doing so for fear of persecution (the HJ (Iran) point). The appellants KK and RS both won their individual asylum appeals. The Home Office was refused permission to appeal by the tribunal and was granted an oral hearing at the Court of Appeal to renew its application for permission. All six grounds of appeal failed.

Read more: Freemovement, https://rb.gy/ussw6d

High Court Quashes “Clearly Unfair” Local Authority Age Assessment

In R (SB (a child)) v Royal Borough of Kensington & Chelsea [2022] EWHC 308 (Admin) the High Court held that an interview conducted by social workers as part of a short-form age assessment was “clearly unfair”. This was because of the combination of there having been no interpreter, no offer of an appropriate adult and no opportunity for SB, an asylum seeker from South Sudan, to rebut adverse factual conclusions.
The age assessment: SB arrived in the UK in May 2021 claiming to be 17 years old. The Home Office rejected this claimed age on the basis of his appearance and demeanour. He was detained for four days and then dispersed to asylum accommodation in the borough of Kensington and Chelsea, the defendant local authority. The local authority’s age assessment was conducted by experienced two social workers in June 2021. Based on the claimant’s appearance and manner, the social workers formed the view that the claimant was well above the age of 18, and so they conducted a short-form, as opposed to a full Merton-compliant, age assessment.

Read more: Freemovement, https://rb.gy/4fbgmy

‘Home Office Policy Discriminates Against Women Refugees’

Female detainees at Derwentside IRC, many of them victims of gender based violence and trafficking, have been told that they can only obtain legal advice over the phone, unlike men in similar circumstances. Around a dozen women were transferred to Derwentside immigration removal centre, a former youth prison in County Durham, at the end of December. The centre replaced Yarl’s Wood as the main site for women detained for immigration purposes. Despite assurances in the Equality Impact Assessment that an in-person service would be available, the SSHD opened Derwentside without this in place.

Detainees can receive up to 30 minutes of free legal advice irrespective of financial eligibility. Our public law team’s own research revealed there is an inadequate number of immigration legal aid lawyers near the centre. Ministers cancelled the process of procuring legal advice provision for the new centre in November 2021, after receiving insufficient compliant tenders. The surgery rota was allocated to London-based firms, which had previously provided surgery advice at Yarl’s Wood. However, the Derwnentside centre is 10 hour round trip from London, making it impractical for face-to-face meetings. On behalf of our client, our public law team says that the shift to Derwentside has resulted in discrimination against the women who will be held there, up to 80 detainees, as they are only able to access legal advice by phone, unlike at many of the centres occupied by men.

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

Deportations From UK at Record Low as Asylum Applications Soar

The number of people being deported from the UK is at a record low while asylum applications have soared over the last year, according to Home Office data. Government statistics, which have measured irregular migration for the first time, also confirmed that 28,526 people arrived on small boats in 2021 – slightly higher than previous reports and a huge jump from the 8,466 who came in 2020. Critics have claimed that the statistics undermine Priti Patel’s claims that the government is getting a grip on the UK’s immigration and asylum system.

Figures released on Thursday 24th February 2022, show that just 2,380 people were forcibly returned to another country in the year to September 2021, a 35% yearly drop and the lowest number on record. In 2004 the Home Office deported 21,425 people. They also showed that just 11 people had been deported since the asylum application rules were strengthened last year after Brexit to allow asylum claimants to be removed if they arrived from another “safe country”.

Only 64 individuals were served with inadmissibility decisions, meaning the UK would not admit the asylum claim for consideration in the UK system, because another country was considered to be responsible for the claim. Meanwhile, there were 48,540 asylum applications in the UK in 2021, 63% more than the previous year. This is also higher than at the peak of the European migration crisis in 2015-16, when there were 36,546 applications, and the highest number of applications since 2003.

Read more: Rajeev Syal, Guardian, https://rb.gy/r7xcm2

Detention Age Assessment Policy Tightened

On 7 February 2022 the Home Office updated Detention Services Order 02/2019 on Care and management of Post Detention Age claims. This policy sets out the approach to age dispute cases in immigration detention and applies to Home Office staff and its contractors. The last version of the policy (dated August 2019) allowed the department to treat a person as an adult if their “physical appearance and demeanour” very strongly suggested that they were 25 years or over, and there was no credible evidence to the contrary.

The August 2019 policy had been introduced in response to the judgment in BF (Eritrea) v SSHD [2019] EWCA Civ 872, which held that treating a person as an adult if their appearance and demeanour suggested that they are significantly over 18 was unlawful. The Court of Appeal held that this created a real risk of more than a minimal number of children being detained. But this judgment was overturned by the Supreme Court (BF (Eritrea) v SSHD [2021] UKSC 38).

The wording of the policy has now reverted to that which was struck down by the Court of Appeal. It allows the department to treat a person as an adult where two members of staff (one of at least chief immigration officer or higher executive officer rank, or equivalent) separately assess the person as an adult “because their physical appearance and demeanour very strongly suggests they are significantly over 18 years of age and no other credible evidence exists to the contrary”. This will apply to people arriving by boat who are processed in short-term holding facilities and are either transferred to immigration removal centres or asylum support accommodation. The High Court recently held that the fast track age assessments being conducted by Home Office social workers were unlawful.

Read more: Freemovement, https://rb.gy/loyx40

Home Office Suspends Ten-Year Route Punishment for Migrants Granted Public Funds

The Home Office has suspended its policy of forcing migrants who successfully apply for public funds to wait longer for settlement. In response to a parliamentary question, migration minister Kevin Foster said on 10 February: We are currently reviewing the policy whereby an applicant on the family route who submits a change of conditions application and receives recourse to public funds is then required to complete 10 years on the family route in order to qualify for settlement.

Pending this review we have currently suspended the process of automatically requiring an applicant to complete 10 years on the family route following the lifting of ‘no recourse to public funds’ conditions, and will instead review their situation in line with the Immigration Rules at their next application for leave to remain. Most migrants with temporary permission to be in the UK have no recourse to public funds. Some can apply to have that condition lifted to ward off, for example, “imminent risk of destitution”. Such applications soared when the pandemic struck.

Read more: Freemovement, https://rb.gy/q441re

Logistics of Survival: Updated Somalia Country Guidance

One of the principal arguments run by people seeking to resist removal to Somalia is that their living conditions on return would be so dire as to amount to a breach of the UK’s obligations under the European Convention on Human Rights, and specifically Article 3. The country guidance case of MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) provided a framework for decision-makers considering these cases, including factors which may or may not lead to a breach of Article 3. In the new country guidance case of OA (Somalia) Somalia CG [2022] UKUT 33 (IAC) the Upper Tribunal has confirmed that the guidance given in MOJ remains applicable with some minor refinements, and with additional considerations added (see headnote below). The case also confirms that there must be a causal link between the implementation of the removal decision and the intense suffering or other Article 3 mistreatment to be experienced by the returnee in order for the expelling state to be held responsible.

At 468 paragraphs, it is a detailed decision, but a must-read for anyone involved in a Somali removal case, and especially those involving material deprivation arguments following Paposhvili, AM (Zimbabwe) and Ainte.

Read more: Freemovement, https://rb.gy/5qnz82