Important new case on costs

The Court of Appeal has given judgment in an extremely important new case on costs, R (on the application of Bahta & Ors) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 (26 July 2011). It specifically concerns the UK Border Agency and legally aided claimants but it also has far wider ramifications. It basically supplements or even replaces the long standing approach of Scott Baker J in R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258.

It has become increasingly common for UKBA to concede a case before it reaches court. This avoids UKBA having to pay for Counsel to attend a hearing, enables Ministers to bang on about how few immigration judicial reviews are successful at court (only because UKBA concede so many cases after they have been lodged but before they go to court!) and, at its worst, it manipulates the justice system so that only the weakest cases go forward to become precedents. It also forces claimants to go to the expense of lodging claims and instructing lawyers, only for UKBA to concede the case late when it could and should have been conceded early. It is abusive behaviour by the UK Border Agency.

Read more

Source: Free Movement

Relatives to lose visa appeal rights

Overseas relatives of British families are set to have their right to appeal against refused visa applications terminated, according to a leaked Home Office policy paper.

Full story

Source: Guardian

Residence rights removal overturned

Source: Institute of Race Relations

By Frances Webber

The Court of Appeal has upheld the right of a Tunisian refugee to appeal in the UK against cancellation of his residence rights.

We have become used to dodgy manoeuvres on the part of the Home Office and the UK Border Agency (UKBA) in their war on asylum seekers, terror suspects and other ‘undesirables’. Campaigns have been fought and limited victories secured against the unbridled use of secret evidence and secret allegations in the context of control orders. A fairly new development is the attempt to hobble appeal rights of those deemed undesirable by curtailing their leave to enter while they are out of the country, and then arguing that they have no right to come back in to prosecute their appeal. The case of MK, which was decided on 23 March 2011, provides a window on these new tactics.

MK is a Tunisian refugee, granted asylum in 2001, who lived in Manchester with his wife and daughters until 2007, when the Italian authorities demanded his extradition. He was arrested on a European Arrest Warrant and extradited to Italy in November 2008, where he was put on trial for terrorism-related offences and an offence relating to false documents. In July 2010 he was acquitted of all the terrorism-related offences. The Italian authorities then tried to send him to Tunisia, but were prevented from doing so by the European Court of Human Rights. In the meantime, however, in April 2010, the Home Office served him with a notice saying it intended to revoke his refugee status, on the basis that there were ‘reasonable grounds for believing him to be a danger to national security’. And on 16 July, the UK authorities cancelled his indefinite leave to enter in the UK.

Naturally, MK sought to appeal against the decision of the UK authorities – but he had been told by UKBA – wrongly – that he had no right to return to the UK for his appeal. When he was released from custody in Italy in August 2010, he was given five days to leave the country. But where could he go? He went to Zurich, but was arrested trying to check in on a flight to Dublin. Unbeknownst to him, UKBA had even cancelled his refugee travel document. He was sent to London City Airport, where he was arrested on arrival. The immigration authorities tried to send him back to Zurich, but his lawyers got an injunction to prevent that, and a ruling from the High Court that the law gave MK a right of appeal in the UK and that the cancellation of his leave did not take effect while he exercised that right of appeal. The judge, Mr Justice Collins, accepted that appellants should not be deprived of the right to attend their own appeal unless that was the clear intention of parliament.

The Home Office refused to accept that ruling and appealed. It argued that the sort of appeal appellants were entitled to – in-country or outside the country – depended on where they were at the time of the decision to cancel their leave or exclude them from the country. The purpose of exclusion would be defeated, its lawyers argued, if appellants who had left the UK could come back for an appeal. As MK’s lawyers pointed out, the argument raised the spectre of someone settled in the UK for decades going abroad on a short holiday and finding themselves suddenly and shockingly banished from the country for ever – a prospect which was evidently what the Home Office intended. The judges agreed that this would give rise to ‘potential injustice’ – a description that feels like something of an understatement. Had the judges not intervened, the Home Office would once more have got away with a sleight-of-hand erosion of appeal rights in the name of national security.

Amanda Weston, a barrister who represented MK, has expressed profound concern at UKBA practice apparently aimed at subverting appeal rights and skewing procedures against appellants. She is speaking at an IRR lunchtime seminar on 18 April, on Deprivation of citizenship – by stealth (http://www.irr.org.uk/2011/april/ha000001.html).

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FOOTNOTE

Secretary of State for the Home Department v MK (Tunisia) [2011] EWCA Civ 333, 25 March 2011 (http://www.bailii.org/ew/cases/EWCA/Civ/2011/333.html).

Appeal for help to rescue refugees from Libya

European Council on Refugees and Exiles(ECRE) met with the Commissioner for Home Affairs to ask her to appeal to EU Member States to help evacuate and offer protection to the 4,000 sub-Saharan refugees trapped in Libya. While the international community is supporting the evacuation of Europeans, Egyptians, Tunisians and other foreigners, sub-Saharan refugees, mainly Somalis and Eritreans, are not able to get out of Libya to find safety. As refugees, they are cannot go back to their own countries, which they fled to save their lives. What is more, suspected of being pro-Gaddafi mercenaries, they are being targeted and are at risk if they try to reach the Egyptian or Tunisian border.

Please follow this link to tread the story in full:

http://www.ecre.org/files/2011_03_03%20Sub%20-%20saharan%20refugees%20trapped%20in%20Libya.pdf

The Refugee Council is calling on the UK government and European countries to work together to respond humanely to the crisis.

Please follow this link to read their press statement: http://www.refugeecouncil.org.uk/news/archive/press/2011/010311_press_libyan_refugee_crisis_Europe

Refusal with no right of appeal revisited

Article first published 28/02/11 (Free Movement)

By Free Movement

This is a problem that has been addressed previously on the blog: what can be done when a person makes an immigration application but for technical legal reasons is not granted a right of appeal to the tribunal? See this previous post.

The problem has now been addressed in two linked cases in the Court of Appeal, R (on the application of Mirza & Ors) v Secretary of State for the Home Department [2011] EWCA Civ 159 and R (on the application of Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161.

In Mirza, the claimants had all made immigration applications while they still had current leave. They had not overstayed. UKBA had refused the applications but set no removal directions. The claimants were able to appeal but because of the absence of the decision to remove they were not able to rely on paragraph 395C of the Immigration Rules. In all these cases that was their best hope of success.

The Court holds that the failure to make a removal decision is unlawful in this context:

40. It is evident that each of these appellants is being denied a removal decision, following a legitimate refusal of leave to remain, as part of a generalised practice, either manifested in or deriving from the internal organisation of the Border Agency, of separating the two decisions by a frequently substantial period of time.

41. Such a practice is in my judgment contrary to the policy and objects of the legislation, which are, as nearly as can be done, to deal compendiously with all issues concerning the lawfulness of a person’s continued residence in the United Kingdom. A practice of deferral for a short period may meet a legitimate rationale of allowing or encouraging foreign nationals who no longer have leave to remain to depart voluntarily, but this cannot extend to a contravention of statutory policy or to the application of unfair pressure on individuals to forfeit what may be their legal rights.

Read more

Appeal for help for refugees stranded in Libya

Christian Solidarity Worldwide (CSW) is deeply concerned for the welfare of African refugees and asylum seekers caught up in the unrest in Libya.

As the security situation in Libya becomes increasingly unstable, European and other nations are rushing to facilitate the evacuation of their own nationals. However, Eritrean, Ethiopian, Somali and other African refugees in Libya, who are already in a vulnerable position due to societal hostility to non-Arabs, are increasingly susceptible to violent attacks.

A group of around 40 families of Eritrean refugees, including children, are currently stranded in an area close to Tripoli Airport with no means of evacuation. The Italian NGO Agenzia Habeshia has appealed to the Italian government and European parliament to assist these and other African refugees who have taken refuge in the Catholic Church in Tripoli.

Being non-Arab and therefore racially distinct from the local population, African refugees have regularly faced arrest, physical and verbal abuse and harassment. Worse still for Eritrean refugees, the friendship between President Muammar Ghaddafi and President Isaias Afewerki of Eritrea, as well as Libya’s non- signatory status with regard to the UN Refugee Convention, has meant that many of them are detained in appalling conditions where they face severe mistreatment and the possibility of forcible return to Eritrea. Those forcibly returned face imprisonment, possible torture and even death at the hands of the Eritrean regime.

The situation for African refugees deteriorated further following reports of attacks on Libyan civilians by “African mercenaries”, allegedly from Niger and Chad. Although Saif al Islam, President Ghaddafi’s son, claimed on state television that illegal immigrants are responsible for inciting the current unrest, refugees report that in detention centres, the government is attempting to recruit African prisoners as mercenaries, and prison guards who object are allegedly being killed. Homes where large numbers of refugees have gathered are being attacked, and they are subject to threatening phone calls and physical assault with knives and stones as angry Libyans mistake them for mercenaries.

Yesterday the UNHCR expressed particular concern “for asylum-seekers and refugees inadvertently caught up in the violence”, appealing to all governments to grant asylum to people fleeing Libya.

CSW’s Advocacy Director Andrew Johnston said, “CSW is deeply concerned for the welfare of the refugees in Libya who are facing hostility on all sides and have no country looking out for their interests.. We urge the international community, and European Union member states in particular, to consider granting temporary refuge to the 40 families with children in Tripoli and to other members of this vulnerable community until more permanent solutions can be formulated”.

Christian Solidarity Worldwide (CSW) is a Christian organisation working for religious freedom through advocacy and human rights, in the pursuit of justice.

Source: Ekklesia

Best and worst funded humanitarian appeals

(IRIN) – UN Undersecretary-General for Humanitarian Affairs Valerie Amos launched the biggest Consolidated Appeals Process (CAP) ever in its 20-year history in Geneva on 30 November, asking donors for a total of US$7.4 billion in humanitarian funding for 2011 to provide assistance to 50 million people in 28 countries.

The 2011 appeal involved input from a record 425 aid organizations and asked member states to consider the humanitarian needs of a record number of beneficiaries. This appeal underscores the growing number of actors involved at every stage of humanitarian funding – planners, practitioners, donors and recipients.

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UKBA appeal rejected after papers lodged a day late

By John Robertson

Birgul Guven, 45, a divorced mother of two, had won the right to remain in Glasgow, but that decision was overturned after an appeal by Jacqui Smith, the then home secretary.

However, documents relating to the appeal were filed a day after the five-day limit expired.

Read full article

A victory for Marjorie. A home for Sweetny.

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 [email protected] 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

Leicester Welcome Project Appeal

Dear friends and supporters,

We realise that due to the economic downturn we are all beginning to feel the pinch and this has also had a tremendous impact on our ability to give food, particularly dry goods and tinned food.

We still have a reasonable amount of soup but this is unpopular with most of our clients. It is not something that they are accustomed to. The same used to apply to baked beans but because of the children socialising with English children this is now not such a problem.

We are gaining new clients each week and we will have to buy food in in order to give them something worthwhile. We are able to obtain some food that is very close to its ‘best by’ date from Sainsbury’s and Aldi and this does help, however, last week we only managed to get one coconut and five litres of water from Aldi although we fared better at Sainsbury’s.

The most requested items are:- rice, pasta, mainly spaghetti, oil, sugar, tea, coffee, tinned goods – tomatoes, fruit, meat, fish, baked beans and sweet corn.
Toiletries. Shampoo, shower gel, toothpaste, deodorants, shaving cream/gel and blades.

Even a few items could make a difference to some of the poorest members of our society and some of these are destitute relying totally on the goodwill of friends.

Regards,

Christine Kilbourne (Chair)
Leicester Welcome Project
21 St. Martins
Leicester
LE1 5DE
Tel: 0116 248 7466
Email: [email protected]

* The Welcome Project is open for all asylum seekers every Thursday from 10am to 1pm

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