Immigration rules amended to be less human rightsy looking
January 21, 2012 by Webmaster · Leave a Comment
Source: Free Movement
Rules…
The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change.
The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February 2012.
Paragraph 395C at the moment reads as follows:
395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person’s behalf.
The paragraph has been the subject of a huge amount of litigation, including the Mirza and Sapkota cases, both previously covered here. However, that litigation has been almost entirely pointless as far as I can determine. With one important caveat, I can myself think of not a single case where paragraph 395C affected the substantive outcome of the case. The factors to be considered are essentially identical to those that must be considered under Article 8 of the European Convention on Human Rights anyway. And no amendment to the Immigration Rules can alter in any way the UK’s obligations under the Convention.
The caveat is that the rather shady Legacy backlog clearance exercise was carried out under the auspices of paragraph 395C. The UK Border Agency was always very careful not to disclose any policy on how Legacy cases were to be decided, and even a Free Movement Freedom of Information request only disclosed scraps of information. I’ve heard that a test case on the consistency or otherwise of Legacy decision making is listed to be heard later this month and will bring further news if/when I hear any.
The real loss would be if the Enforcement Guidance and Instructions were amended. At the moment chapter 53 does quite a good job in parts of reflecting the UK’s human rights obligations. The relevant parts fall under the section on 395C. If that section is deleted and not replaced then it will lead to further litigation as UKBA officials ignore human rights and those who are able have to pursue court action to secure enforcement of their rights.
A new paragraph is also being inserted at paragraph 353B in relation to fresh asylum and human rights claims:
353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:
(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
(iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused;
in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
Additional information on the ILPA website is available here for members in which it is clearly stated in terms by the UK Border Agency that the changes to the rules do not amount to a change in policy and that chapters 51 and 53 to the EGI remain in force.
As a footnote for the lawyers, Statement of Changes HC 1733 additionally makes provision for future online applications for Tier 2 and Tier 5 of the Points Based System.
Ensure asylum seekers are treated humanely in EU: RC
December 29, 2011 by Webmaster · Leave a Comment
Refugee Council has welcomed the European Court of Justice’s ruling that asylum seekers should not be returned to countries where they may face “inhuman or degrading treatment”.
Source: Africa News
Asylum seekers ordered back to UK
December 9, 2011 by Webmaster · Leave a Comment
The High Court has ruled that a family of asylum seekers from Sri Lanka, who were unlawfully detained and flown to Germany six years ago, must be brought back to the UK. Their treatment was described in court as a ‘moral outrage’.
Source: Yorkshire Post
UKBA attacked for ‘dumping’ missing cases
November 4, 2011 by Webmaster · Leave a Comment
MPs have accused the UK Border Agency of losing track of a population of asylum seekers and migrants equivalent to the size of Cambridge.
Source: BBC News
Female asylum seekers struggle against UK culture of disbelief
November 3, 2011 by Webmaster · Leave a Comment
(TrustLaw) – It should have been a happy time.
In 2008, Sanaa* (not her real name) left Iraq to join her British husband and start a new life in southeast England. But from the moment she set foot in her new home, she was beaten and verbally abused by her husband, also of Iraqi origin.
Legal aid cuts could force trafficking victims to seek asylum
October 28, 2011 by Webmaster · Leave a Comment
Lawyers have warned that proposed cuts to publicly funded immigration cases could force people who have been trafficked into the UK to seek asylum, even if this is not the best solution for them.
Source: s o l i c i t o r s j o u r n a l
Government opts out of asylum directives
October 22, 2011 by Webmaster · Leave a Comment
The government has opted out of two EU asylum directives, one of which would allow people to work after being in the UK for six months, claiming that they would hinder the asylum system.
Source: Economic Times
Goodbye paragraph 395C?
October 14, 2011 by Webmaster · Leave a Comment
Source: Free Movement (Article first published 14 October 2011)
The cat gets it
Theresa May and David Cameron have promised to crack down on the perversion of human rights. May specifically stated that she wanted to amend the Immigration Rules to do so. Some of this is no doubt pure politics of the dogwhistle variety: it will not necessarily be followed by new policies or actual changes, but ministers want to be heard saying the ‘right’ thing.
It is difficult to take May seriously after Catgate. She cannot really be expected to check everything that is placed in front of her by her speech writers, but the pledge on changing the rules was unusually specific. I’ve been wondering what might follow, and my guess is that paragraph 395C will be scrapped. A Presenting Officer suggested to me that it might go the other day when we chatting before court, and this would perhaps arguably fulfil May’s promise.
The rule, very recently slightly amended, currently reads as follows:
395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person’s behalf.
In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.
The flaw is that, as you can see, the paragraph makes no mention whatsoever of human rights. Arguments under this rule have a completely different legal basis additional to and more generous than human rights arguments. I don’t think this sort of legal nicety will bother May and her speech writers, however. The arguments made under paragraph 395C are basically the same as made under Article 8 of the European Convention on Human Rights.
Paragraph 395C was a surprisingly generous addition to the rules when it was introduced in 2006 following the deportation debacle, and it also, by a legal quirk, gives huge discretion to immigration judges to make up their own mind about how to dispose of a case. That is the very last thing that the last two governments seem to want – allowing judges to judge cases on their merit under national and international law.
An introduction to working with unaccompanied children
September 13, 2011 by Webmaster · Leave a Comment
20th September, London – this course covers who unaccompanied children are, asylum determination, lodging an application and the asylum process, the roles of different adults in the system, the legal and policy framework for support and care, including the Children Act, the impact of the asylum process on care planning, common issues faced by unaccompanied children and those working with them.
£12m paid in asylum compensation
August 18, 2011 by Webmaster · Leave a Comment
More than £12 million has been paid out in legal costs and compensation to asylum seekers and other migrants in the last year. This includes payments to families who were unlawfully detained and removed.
Source: The Independent
