On Friday 13th, in the Asylum and Immigration Tribunal in Islington, London, a victory for common sense and common decency was won: Marjorie Nshemere Ojule was granted the right to be reunited with her daughter, Sweetny, after 7 years of separation, winning her appeal against the Home Office under Article 8 of the European Convention on Human Rights (the right to family life). The decision was met with great joy and many tears.
Barring a Home Office appeal (which the tribunal judge said would be ‘very unlikely’ to succeed), this decision means that Sweetny could be home within weeks – reuniting a family separated by persecution and giving Sweetny the family life she has longed for and deserves. It’s a victory for Marjorie and for Sweetny – and for a community that has united around this case in their determination to see justice done.
“I was crying, everyone was around me crying too,” Marjorie said after the hearing. “The best present would be to have Sweetny home for Christmas”.
Among the many people who Marjorie would like to thank for their continued support are Yoni Bentovin and Emiliy Harris of Indivision Films, whose video evidence helped establish the emotional truth behind this case – an example of the power of storytelling to make a difference for refugee women and their families. You can see their film about Marjorie’s fight for Sweetny on The Testimony Project website: www.testimonyproject.org/video/marjories-video-testimony
Marjorie would also like to thank Natasha Walter – her ‘rock and support’ – and Women for Refugee Women; Ben Fedder who travelled to Uganda to obtain footage used in the appeal and testified in court about the truth of Marjorie’s case; Christine Bacon and everyone at Actors for Human Rights, and her legal team – barrister Allan Briddock of Mitre House Chambers and solicitors Sutovic and Hartigan, in particular Henry for always going the extra mile.
“And of course, there are my fellow women asylum seekers who have done so much to help me” says Marjorie.
Marjorie would also like to pass on her thanks to the many dozens of you who sent messages of support which she read before the hearing. “I was crying at how many people were thinking of me” Marjorie said, “it made such a difference”.
But the story is not over yet.
Two obstacles remain before Marjorie can be reunited with Sweetny. First, the Home Office could appeal the decision. We will keep you posted on this.
Second is the issue of money.
It will cost £700-£900 for Sweetny’s air ticket and the associated costs of bringing her home to Marjorie. Please, if you’ve been moved by Marjorie’s story, or if you just want to speak out in a small way against the injustices of current immigration policy, give some money. Today we’ve received the first £100. Anything you can add would make an enormous difference.
Send an email to info@testimonyproject.org pledging the amount and we’ll get back to you with details of how to get the money to Marjorie. Every penny you give will go directly to Marjorie and Sweetny.
Let’s get Sweetny home for Christmas.
Holly Pelham
Director
The Testimony Project
+ 44 (0) 7989 540 704
www.testimonyproject.org
Source:Free Movement
In the case of NA and Others v SSHD [2009] UKAIT 00031, the Asylum and Immigration Tribunal considered and rejected the claim of three students to have studied post graduate diploma courses taught at the now notorious Cambridge College of Learning (CCL). The tribunal went on to find that no such courses had ever been taught. The case therefore has major implications for any ex-student of CCL claiming to have studied and obtained a post graduate diploma from CCL, and the tribunal has in fact written to all such students with outstanding appeals proposing that their appeals are determined without a hearing (copy here). This is because any outstanding appeals based on post graduate diplomas from CCL are certain to be dismissed on the basis of NA and Others unless compelling new evidence is produced that suggests the tribunal was wrong in NA.
There do still seem to be ex-students from CCL claiming to have been genuine students, in the sense that they did attend the college on a regular basis, did attend lectures and did complete assignments. In short, they claim that there was a real course, even if it wasn’t a terribly good one. Under the immigration rules at the time (and which must be applied on appeal) there was no requirement for there to be a good quality course – the Home Office left the door wide open to any college to run a course said to be a post graduate diploma without there being any minimum requirements, accreditation or regulation for such courses.
I don’t know if there were genuine ‘post graduate diploma’ courses at CCL or not. If any of the remaining ex CCL students out there want to try and persuade the tribunal (a) to grant an oral hearing and (b) to allow their appeal, they’ll need substantial and compelling and evidence. It’s difficult to imagine what that might be, but perhaps:
- Evidence from the actual lecturers on the course. This was conspicuous by its absence in the NA case.
- Identity or enrolment evidence that matches with the evidence seized by the Home Office during the raid. None of the students in NA matched any of the CCL records held by the Home Office (or so said the Home Office, at least), but if there are genuine students out there perhaps they would match those records. To find out, disclosure from the Home Office would need to be sought.
- None of the students in NA had a CCL identity card. Possession of one might be helpful.
- The course materials and assignments submitted by the alleged students in NA sound to be of very poor quality and in one case entirely plagarised from the internet. More convincing course materials and assignments might be helpful, although it is difficult to imagine this being enough by itself as an immigration judge might conclude materials had been manufactured for the purpose of the appeal.
Frankly, the chances of obtaining any of this evidence looks pretty slender. The chance of any successful appeal is also therefore correspondingly slender.
There are at least a few ex CCL students who won their appeals before the NA case was heard. The evidence relied on by the Home Office in those early cases was almost non-existent. To a significant extent, the Home Office has had its chance and blown it in such cases. Unless the Home Office has appealed, those students ought to be granted visas. If the Home Office did appeal, even though there is no error of law in making a decision on the basis of the evidence that was presented at the time, immigration lawyers sometimes suspect senior immigration judges of granting permission to the Home Office rather readily. It may be that even though there is no obvious error of law, such cases do get reconsidered and dismissed later on.
There have been several important judgments from the Court of Appeal in the last few weeks. I’ve been very busy and having difficulty keeping up. However, I seem to have been struck down by piggy flu and find myself with time at home on my hands. So, expect a series of case law posts over the next few days.
The first case is EN (Serbia) v SSHD [2009] EWCA Civ 630. It concerns section 72 of the Nationality, Immigration and Asylum Act 2002 and the presumption that a person has been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community if one of several conditions apply. If the presumption applies, the person is excluded from refugee status.
One of the conditions is that a person has been convicted of an offence specified by the Secretary of State in regulations. The regulations in question are the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. The Court finds that the regulations are irrational and ultra vires because they include several offences which cannot rationally be described as ‘particularly serious’:
“By way of example only, there are the following: theft, with no qualification as to the nature or value of the item or items stolen (so that theft of a bottle of milk is sufficient); an offence under section 9(1)(a) of the Theft Act 1968 (entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape), which would include someone who enters a building without permission intending to steal a bottle of milk; an offence under section 9(1)(b) of that Act (having entered a building as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict grievous bodily harm), which again would include the offence committed by someone who enters a house without permission and then steals a milk bottle; an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging, without lawful excuse, another’s property intending to destroy or damage it or being reckless as to that), which would include the offence committed by someone who scratched the paintwork of another person’s car. The offence under section 44 of the Magistrates’ Court Act 1980, namely (aiding, abetting, counselling or procuring the commission of a summary offence, provided that the offence in question is described in Schedule 1 or 2 to the Order is specified. It is at best very difficult indeed to see how abetting the commission of a summary offence could be a particularly serious crime.”
The 2004 order is therefore struck down as a whole as the Court cannot edit the order itself. Interestingly, the Court then goes on to make the following comment about whether the Tribunal can or should examine the lawfulness of delegated legislation:
“Where a tribunal considers that there is a real prospect of a statutory instrument being ultra vires or unlawful, it should give serious consideration to adjourning its proceedings in order to give the party challenging its lawfulness an opportunity to issue judicial review proceedings before the Administrative Court, if necessary seeking an expedited hearing. It is far more appropriate that such issues be litigated before and decided by the Courts. However, this is likely to change if and when the AIT becomes part of the new tribunal structure, with an appellate structure and an Upper Tribunal of which the panel may include a High Court judge, with appeals to the Court of Appeal.”
As well as striking down the 2004 Order, the Court also holds that there are two separate presumptions in section 72, both of which are rebuttable. The first is that one has been convicted of a particularly serious crime. The other is that one is a danger to the community. Both questions have to be examined separately. The Secretary of State was contending that there was just one presumption and that conviction of what was deemed to be a particularly serious crime automatically meant that one was presumed to be a danger to the community. Evidence as to risk of reoffending is therefore important in section 72 cases.
The Court’s decision is similar to that of the Tribunal in IH (s.72; ‘Particularly Serious Crime’) Eritrea [2009] UKAIT 00012. However, the Tribunal held that the 2004 order is lawful, so I’ve filed this post under ‘Tribunal overturned again‘.
On a different but important subject, in the course of judgment the Court finds that the Refugee Convention is not in fact incorporated into English law. It is only incorporated for some purposes and does not have the force of statute. I’ve no idea as to the implications of this, but it strikes me as worthy of mention.
Source:Free Movement
By Free Movement
The determination concerns the award of a qualification for the purposes of Tier 1: Post Study Work rather than the bigger issue of the silly maintenance requirements. Senior Immigration Judge Spencer finds that a person has not been awarded a qualification until they have received the qualification certificate.
My own view, for what it is worth, is that this is a daft outcome. What neither the Home Office nor many immigration judges seem to understand is that the world does not revolve around their other worldly evidential requirements. Banks are not willing to issue the letters the Home Office requires for maintenance to be proved. Educational institutions do not understand the fine legal distinctions and technical wording that disqualified this appellant.
I have to add that I won a first instance appeal on exactly this point a few weeks ago, where the immigration judge accepted that a results letter and a letter confirming successful completion of the course was sufficient. However, it looks like the guidance might have changed yet again on this issue since then, and of course the old guidance is now unobtainable.
Paragraph 6 of the determination is interesting, in that the tribunal seems to have entertained the possibility that had the certificate been obtained by the date of the appeal hearing that might have changed things. Immigration judges are divided on the question of whether, if an appellant meets the requirements at the date of the appeal but not when the application was made to the Home Office, the appeal can be allowed. There is no consistency at all and outcomes are quite random, making it impossible properly to advise clients on the prospects of success. However, this was not a senior AIT panel, the point isn’t decided anyway and too much should not be read into this as a precedent.
By Free Movement
Few will lament its passing, announced today by still Immigration Minister Phil Woolas. The news is far from unexpected, but the details are interesting. The plan is for the new system to be implemented by early 2010. A full consultation response has also been published.
Immigration appeals will be transferred into the unified tribunal system. A separate chamber will be created in the both the First Tier Tribunal and the Upper Chamber specifically for immigration cases. In some ways this is a shame as many representatives hoped for some new blood and fresh perspectives from non immigration judges working in other areas.
Interestingly, there will be a normal two stage appeal process between the First Tier and Upper Tribunal. An appeal goes to the First Tier to start with. If the appellant is unhappy, an application for permission to appeal to the Upper Tribunal is made, firstly to the First Tier. If the First Tier refuses permission to appeal, an application for permission to appeal can then be made to the Upper Tribunal. The Home Office sound un-enthusiastic about this system, which includes an additional stage to the old systems of immigration appeal, and say they will keep it under review.
If permission to appeal is granted by either the First Tier or Upper Tribunal, the Upper Tribunal will hold a hearing to decide whether an error of law was committed by the First Tier. If so, the Upper Tribunal can proceed to hear the case itself or can remit the case to be re-heard in the First Tier. What the consultation paper says about remittals is worth quoting:
The Government believes
that remittal may be necessary in some cases, but it
should only take place in exceptional circumstances
and no case should be remitted more than once.
However, we recognise that the Senior President of
Tribunals has the primary role in guidance on how
cases should be handled in the unified system.
“The Government believes that remittal may be necessary in some cases, but it should only take place in exceptional circumstances and no case should be remitted more than once. However, we recognise that the Senior President of Tribunals has the primary role in guidance on how cases should be handled in the unified system.”
An assurance has been given that the procedure rules (and therefore presumably practice directions) will be drafted by the normal drafting committee, not by the Home Office. This issue could well provide the first test of the tribunal’s independence. It is again worth quoting from the consultation response, which makes the following heavy-handed threat about the procedure rule drafting process:
“[The Government] has faith this will be done with full regard to the Government’s targets and policy. It is also noted that the Lord Chancellor has the power, where expedient to do so, to direct the committee to make rules necessary to achieve a certain purpose, and may disallow procedure rules made by the committee with written reasons.”
There will be no specific legislation to preclude judicial review of tribunal decisions. The consultation response says this question will be left to the courts to decide, which is welcome. If permission to appeal is refused by the Upper Tribunal, it therefore may or may not be possible to judicially review that decision. A test case will be necessary. The Home Office say they will keep this under review, which presumably means they’ll legislate if they lose the test case.
There will be an onward right of appeal to the Court of Appeal. The consultation response is silent on the critical issue of whether a public interest test will be introduced for appeals to the Court of Appeal. Any such limitation is strongly opposed by lawyers and at least some judges.
The Government is attempting to legislate to allow transfers of immigration judicial reviews from the High Court into the Upper Tribunal. However, they were defeated on this issue in the House of Lords, which I think ended up providing only for fresh claim judicial reviews to be transferred. It looks like the Home Office plan to try and push through their original amendments despite the opposition of the Lords so far.
The current appeal system is a botched mess. The new system looks more sensible, and is basically a return to the days before the Asylum and Immigration Tribunal, which can now be written off as a messy and expensive failure. The big news is the transfer of at least some judicial review cases into to the Upper Tribunal. However, there will no doubt be battles to be fought over the Court of Appeal issue, remittals, time limits for appeals and legal aid funding.
The Minister of State for Borders and Immigration, Phil Woolas today 08 May 2009 issued the following statement on the transfer of functions of the Asylum and Immigration Tribunal into the First-tier and Upper Tribunal:
I am today publishing, in conjunction with my hon. Friend the Parliamentary Under Secretary of State for the Ministry of Justice, the government’s response to our consultation “Immigration Appeals, Fair Decisions; Faster Justice”, published in August last year. Copies of our response have been placed in the libraries of both houses.
The government intends to transfer the functions of the Asylum and Immigration Tribunal into the First-tier and Upper Tribunal, to ensure that the system is fairer and faster, and that its decisions are respected and final. This will mean replacing the existing High Court review stage with an appeal to the Upper Tribunal, which will speed up the process significantly. The pressure on the Administrative Court will also be dramatically reduced, which will free up time to deliver justice for other users of the court.
Although the benefits of the unified tribunal system will apply to all immigration appeals, the response we are publishing today also includes a number of measures which focus on asylum cases. Taken together, we expect these measures will ensure that 90 per cent of asylum applications have either been granted or have exhausted their appeal rights within 18 weeks. This is a significant improvement over the current system, where it can take up to 42 weeks for cases to reach this stage.
The proposals in our consultation stemmed from a small working group chaired by Lin Homer, Chief Executive of the UK Border Agency and Lord Justice Richards, a Court of Appeal Judge. I am grateful to the members of the working group for their valuable insight and to all those who responded to the consultation. We have taken their comments on board and they are reflected in our response.
Source: UKBA Press Office
By Free Movement
This Hello! style headline is perhaps the clearest sign yet that the Asylum and Immigration Tribunal will be abolished and amalgamated into the unified tribunal. The Home Office planning documents now state that the AIT will be scrapped, the AIT stakeholder meetings keep getting postponed and now the President of the new unified tribunal is sitting on AIT cases. For non immigration lawyers, it is completely unheard of for a Lord Justice of the Court of Appeal to be deciding visit visa appeals and the like.
I wonder what he made of his experience.
The word is that the delay in announcing the change to the unified tribunal is because the Home Office wants to make sure the new system is sufficiently streamlined. The existing tribunals structure involves a two-stage permission to appeal system (first ask the lower tier for permission, then ask the upper tier for permission) which seems likely to be dropped in immigration cases. I’ve no idea what other ’streamlining’ they have in mind. There has been an undertaking that the procedure rules for the immigration bit of the unified tribunal will be drafted by the normal drafting committee, meaning that the Home Office will not get their grubby hands on it. I’d be surprised if the Home Office was willing to abandon the asylum service provisions (Home Office gets served then serves it on the asylum seeker), so it may be that the delay is about legislating on some parts of the new process so that the procedure rules committee is prevented from meddling.
Does this mean that there will start to be costs awards in immigration cases? A two-edged sword if ever there was one, but perhaps the only way to make the Home Office start to comply with directions, something they are notoriously poor at right now.
By Free Movement
It very much looks like the AIT is about to be scrapped and merged into the new unified Tribunals Service. This is something I posted on way back in September and it now looks very likely to happen.
The new system applies to all tribunal work except immigration and asylum. All of the tax, mental health, employment, social security, land and other tribunals have been combined into one structure. There is a horizontal division between the lower tribunal and the upper tier and there are also vertical divisions by specialisation, called chambers. Judicial reviews can be transferred into and out of the upper tier. Apart, that is, from immigration and asylum judicial reviews, for which there is a statutory bar to transfers. The government is currently proposing lifting that bar, and the issue has been and will be again debated in the House of Lords.
The entrails cast in the air (or settling tea leaves if you prefer) are a recent letter from the Lord Chief Justice complaining about the volume of immigration and asylum cases in the Administrative Court and proposing to shift all fresh claim judicial reviews and other JRs at the judge’s discretion into the new Upper Tier of the general tribunal. That doesn’t seem likely if immigration and asylum cases have not already been brought into it. The Government is very keen to lift the statutory bar. This is presumably for a reason: so that immigration and asylum JRs can indeed be transferred into the tribunal. An AIT stakeholder meeting was recently postponed pending an announcement on the future of the AIT.
That’s good enough for me and I am now certain that the AIT is on the way out.
The current immigration appeal system is a dog’s dinner, and transferring it into the new tribunal system would surely be neater. There would probably be new immigration chambers set up in the lower and upper bits, but one might hope that there could be something of a culture change if immigration ‘judges’ came into regular contact with other tribunal adjudicators and perhaps even sat on non immigration cases. There has also been an assurance that procedure rules for immigration and asylum cases would be made in the same way as other procedure rules, thereby perhaps ending the privileged access the Home Office has exploited in previous years.
Lots of new procedures and rules to learn all over again, the whole caboodle being turned upside down again – but perhaps these changes will stick this time. Good or bad, though, it now looks inevitable.
IAS Chief Executive Keith Best has written to the Chief Executive of the UK Border Agency asking her to issue a statement as soon as possible on the plight of the several thousand Zimbabweans who have been left in a state of legal limbo by the Government’s indecision on their cases.
“As soon as we had won the landmark case of RN before the Asylum & Immigration Tribunal I raised with Lin Homer, the Chief Executive of the Border Agency, the need for the Government to act swiftly to resolve the misery of the thousands of Zimbabweans in the UK who have been under threat of being returned knowing that they would face continued persecution there” said Keith Best. “That was on 19 November. I have written as follows:
“Zimbabwean cases
“You will recall that after our successful case of RN before the Asylum & Immigration Tribunal I raised with you at the National Asylum Stakeholder Forum meeting on 19 November when we might expect a definitive answer from the UK Border Agency about the plight of the thousands of Zimbabweans in the UK who would now come within the Tribunal’s definition of someone who could be at risk of persecution.The Tribunal observed that in respect of someone who is not a supporter of Zanu-PF “such a person is in general reasonably likely to be assumed to be a supporter of the MDC and so, therefore, someone who is unlikely to vote for or support the ruling party, unless he is able to demonstrate the loyalty to Zanu-PF or other alignment with the regime that would negate such an assumption.” This is a marked differentiation from those who have actively supported the MDC directly. The Tribunal made the point that “having made an unsuccessful asylum claim in the United Kingdom will make it very difficult for the returnee to demonstrate the loyalty to the regime and the ruling party necessary to avoid the risk of serious harm at the hands of the War Veterans or militias that are likely to be encountered either on the way to the home area or after having returned there.”
“We learned a week ago that the Secretary of State is not applying to the Court of Appeal against the decision in RN. She is currently considering her position in regard to Zimbabwean asylum seekers in the UK. We notice that the UK Border Agency is now granting status to more Zimbabweans and conceding appeals in some circumstances. There are many reconsideration applications from both sides that have long been stuck in the Tribunal, High Court and Court of Appeal pending the outcome of this lengthy litigation, some for two years or more. We do not yet know how those courts intend to deal with these applications but that will become apparent shortly.
“As you will know, these matters have been continuing for almost four years for some people who, although they want to go home to Zimbabwe when it is safe to do so, cannot while there is a genuine fear of persecution – now accepted by the Tribunal.
“We urge you, therefore, to grant a status to these persons rather than leaving them in a legal limbo until such time as it is safe for them to return and to allow them to work while they remain in the UK. I was at the church service and rally of Zimbabweans in Parliament Square and was touched by the stories of so many who want to make a contribution to the UK while they are here but are losing their skills by not being allowed to work.
“At the NASF meeting on 19 November you indicated that there would be a prompt response. I hope that in everyone’s best interests and removal of continuing uncertainty that this response is now imminent.
“I look forward to hearing from you.”
Article originally published on 10 December 2008 - IAS
The decision against an Eritrean refugee, whose application for entry to the UK was refused, has been overturned by Lord Eassie in a judgement that may smooth the passage of entry and loosen the restrictions on emigres from the Sudan.
The Asylum and Immigration Tribunal had ruled in 2005 that the applicant “N.B.E.” was to be considered as a “draft evader” rather than a refugee. The applicant was 22 years old at the time, and therefore within the age band for being called up for military service. The IAT had made the judgement, despite the fact that call up draft papers had never been served on N.B.E.
“We have much difficulty in understanding why what was said in those paragraphs must be read as applicable only to “draft evaders” – that is to say, those who had left Eritrea after being served with call-up papers,” said Lord Eassie in his judgement.
“The UNHCR recommendation for temporary protection was made respecting failed asylum seekers generally. Moreover, what particularly weighed with the Tribunal in MA was the reported fate of those recently deported from Malta to Eritrea. The Tribunal noted that the deportees were “of draft age, and were in part at least failed asylum seekers”. Importantly it does not appear from what is narrated of the terms of the UNHCR report in question that those who were deported from Malta were to any material extent “draft evaders”.
“Counsel for Secretary of State submitted to us that since the asylum issue had been considered by the IAT on the alternative bases (cf paragraphs 6 and 20) that the applicant MA was either a draft evader or simply someone of draft age, the passages relating to her human rights claim must be read as applying only with the inclusion of the former basis, namely that of her being a person who was a “draft evader”, but to the exclusion of the latter basis. We are unable to accept that submission.” – the FIRM
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