Quietly Passing Statutory Instruments is No Way legislate on Migrants’ Rights

A new law preventing migrants from using their residence permits to prove their right to rent or work in the UK is coming into force without robust parliamentary debate. From 6 April 2022, no migrant in the UK will be able to use their biometric residence permit or card as valid proof of their lawful immigration status. Instead, immigration status will only be proved digitally, presenting real risks to those without the internet or digital devices.

Despite the fact that this change will have significant consequences for thousands of migrants in the UK, the government is choosing to implement it using delegated rather than primary legislation — meaning it could bypass important scrutiny by Parliament.

The law in question, laid before Parliament in March 2022, is a statutory instrument: the Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 (SI 2022 No. 242). It extends the requirement to prove immigration status digitally for right to work and rent purposes from EU citizens with pre-settled and settled status to all non-Irish migrants in the UK.

Read more: Freemovement, https://rb.gy/nnwa8go

Overturning a Citizenship Refusal Based on Character Concerns is Very Difficult

Deciding whether someone is of good character in the context of a citizenship application is up to the Home Office. Getting that decision overturned in the courts is likely to be very difficult.The question of whether the respondent is satisfied that the applicant is a person of good character, such that he should be regarded as eligible for the grant of British citizenship, necessarily involves an evaluation or judgment on the part of the Secretary of State. Parliament has assigned that judgment to the Secretary of State. Unless her decision is irrational, or exhibits some relevant failure to observe public law principles, the decision as to whether she is satisfied that the person is of good character in this context is a matter for the Secretary of State. Further, it is for the applicant to satisfy the Secretary of State that he is of good character; it is not for the Secretary of State to prove that he is not of good character. [25]

What we learnt from the Court of Appeal’s decision in R (Amin) v Secretary of State for the Home Department [2022] EWCA Civ 439.

Read more: Freemovement, https://rb.gy/wr154l

USA: Asylum Seekers Face Real Harm from US Border Policy

Following the Biden administration’s recent announcement that it would rescind an abusive Trump-era summary expulsion policy in May, the US states of Arizona, Louisiana, and Missouri this week sued to force the administration to continue turning asylum seekers away at the border. In the same vein as alarmist and xenophobic rhetoric and policies seen in Texas, the states claim that giving people a fair shot at protection will cause “calamity ... chaos and catastrophe.” The hyperbole appears designed to conceal abuse and legal misdirection.

The real harms are faced by people expelled from the United States, with no chance to explain their situation or seek review. It’s hard enough to justify another month and a half of this abusive practice. The claim that the real harms are suffered by US states, rather than the people expelled to danger, is indefensible.

Read more: Michael Garcia Bochenek, HRW, https://rb.gy/ig8klx

Afghan Judge to Get Visa Decision Before Having to Come Out of Hiding

The Home Office has been ordered to make a decision in principle on an Afghan judge’s visa before making him come out of hiding to lodge a formal application. The case is R (JZ) v Secretary of State for Foreign, Commonwealth and Development Affairs & Ors [2022] EWHC 771 (Admin). As a judge in Afghanistan from 2008, JZ handed down “lengthy prison sentences” to Taliban members. In August 2021, with the insurgents resurgent, he applied for relocation to the UK under the Afghan Relocations and Assistance Policy, better known as ARAP. The JZ family seem to have come very close to evacuation before the fall of Kabul, but ultimately never made it to the airport.

They are currently in hiding, separately, in Afghanistan. JZ says he is being actively sought by the Taliban, with the Taliban having come to the family home to try to find him and having tried to abduct his 16 year old son…

Read more: Freemovement, https://rb.gy/45fufp

Home Office Policy of Blanket Seizures Of Migrants’ Mobile Phones Unlawful

In a landmark judgment today 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); A second statutory power (s48 Immigration Act 2016) “does not authorise a search of the person” for phones or other items (para 88); “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); “the data extraction policy unlawfully purported to permit the complete extraction of data from every mobile telephone and so was contrary to the ECHR and the 2018 Act” (para 35); Compelling PIN numbers from the affected persons was unlawful and the policy “required the officers to commit this specific unlawful act on multiple occasions against multiple people” (para 36) Many of these points were effectively conceded by the Home Office in the face of the legal challenge, as the court records in its judgment.

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

MPs Call For Military Base Housing Asylum Seekers to Close With ‘Immediate and Permanent Effect’

MPs and peers have claimed a former military base in Kent is ‘fundamentally unsuitable’ to house asylum seekers and called for its closure with ‘immediate and permanent effect’. The All-Party Parliamentary Group (APPG) on Immigration Detention published their report from a February visit to Napier Barracks on the same day as a debate in the House of Lords challenging legislation last year via which the Home Office granted itself emergency planning permission to use the site until at least 2026.

The APPG found that being accommodated at Napier left many asylum seekers ‘feeling dehumanised and suffering a profound deterioration in their mental health, in some cases to the point of attempting suicide’. A ruling by the High Court in June 2021 held that Napier Barracks did not meet minimum standards for asylum accommodation. TheMPs highlighted inadequate safeguarding of vulnerable people, such as victims of torture and trafficking, with little being done to identify residents who are in need of support; the physical environment described as ‘run-down, isolated and bleak, with many buildings in an extremely poor state of repair’; and ‘a near total lack of privacy and private spaces at the site’ with residents continuing to be accommodated in dormitories of up to 12-14 people. They also flagged inadequate access for residents to healthcare and legal advice and the difficulties faced by those with asylum claims.

Read more: Jon Robins, Justice Gap, https://rb.gy/7jxkgk

Briefing: Indefinite Leave to Remain for People With Refugee Status or Humanitarian Protection

A successful application for asylum or humanitarian protection in the UK results in the grant of five years’ permission to stay, on what is known as a “protection route”. People granted permission on a protection route then need to apply for settlement, or “indefinite leave to remain”, shortly before the expiry of their initial permission.

This article looks at the law and policies that apply to settlement applications on protection routes, including the “safe return review” that will be conducted. The Immigration Rules setting out the requirements for settlement are in Appendix Settlement Protection. This is fleshed out by the policy guidance on Settlement for people on a protection route. The policy guidance on Revocation of refugee status is also relevant.

Applications on this route are free of charge. They are also in scope of legal aid, subject to financial eligibility.

Philippa Roffey , Freemovement, https://rb.gy/zpvqt5

The shameful history of the Chagossians’ treatment by the UK has been documented more ably by others. But very briefly and from a nationality angle: the Chagos Islands were once administered by Britain as part of the colony of Mauritius. Today they are a US military base with a nominal British presence (and an alleged CIA black site). To secure the islands for the US military, the UK detached the Chagos Islands from Mauritius (and the islands of Aldabra, Farquhar and Descroches from Seychelles), designating them as the British Indian Ocean Territory, and granting the US government use of the islands for military purposes by an exchange of notes.

The British Indian Ocean Territory continued to be designated as a UK colony in British nationality law. It was reclassified in 1982 as a British dependent territory, and again in 2002 as a British overseas territory. All this meant that, had the islanders remained in their homes, then they and (crucially) their descendants would be both BOTCs and British citizens.

Except they had not. To make way for the base, the islanders were kicked out between 1967 and 1973, and an immigration regulation prohibited their return. They were deported to Mauritius or Seychelles, where they remained (living in many cases in severe poverty) until, in 2002, the UK granted British citizenship (and therefore the right of abode in the UK) to all BOTCs. At this point, many of the islanders chose to relocate to the UK, and there are today significant communities in Crawley and Manchester

Read more: Freemovement, https://rb.gy/vmvf8w