Asylum seeker fell from balcony after taunts

An asylum seeker, who climbed on to a balcony of a Nottingham tower block after his claim was refused, fell to his death after a ‘baying’ crowd urged him to jump, an inquest has heard.

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Source: BBC News

UKBA stripping more dual-nationality Britons of citizenship

Increasing numbers of British nationals are being stripped of their citizenship under Home Office powers introduced in the wake of the 2005 London bombings.

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Source: Guardian

McCarthy judgment available

Source: Free Movement

The hotly anticipated (er, by EC law geeks and the parties mainly) judgment in McCarthy v United Kingdom (Case C‑434/09) is now out. The appeal was dismissed: dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on the Citizens’ Directive (2004/38) or on Article 21 TFEU. Or, in the memorable words of the European Court of Justice itself:

“1.      Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.

2.      Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.”

The first point to make is that the ECJ holds that a person who has never moved between Member States and is not a worker, self employed and so on (a ‘qualified person’ in our domestic terminology) cannot benefit from the right to move and reside freely imparted by the Citizens’ Directive. See paragraphs 30 to 43. The reasoning here is interesting because the Court seems to be at pains to emphasise that the right of free movement and residence in the Citizens’ Directive is a unitary right, not two different rights, as the Court seemed to suggest in Zambrano in relation to Article 20 TFEU. The outcome is certainly consistent with Zambrano, though, as in Zambrano the Court also held that the Directive could not apply.

The Court then goes on to consider Article 21 TFEU. This in itself puzzles me, because the judgment in Zambrano is specifically addressed to Article 20 TFEU. For the life of me, I cannot work out the difference between the two as one seems to repeat the other, so it is difficult to see what the significance is of the different legal basis for McCarthy and Zambrano.

Article 20(2) provides as follows:

“Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a)       the right to move and reside freely within the territory of the Member States…”

Article 21(1) provides thus:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect…”

Anyway, the Court goes on to distinguish the facts of McCarthy from the facts in Zambrano:

“49. However, no element of the situation of Mrs McCarthy, as described by the national court, indicates that the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the Member States, in accordance with Article 21 TFEU. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen.

50. Indeed, the failure by the authorities of the United Kingdom to take into account the Irish nationality of Mrs McCarthy for the purposes of granting her a right of residence in the United Kingdom in no way affects her in her right to move and reside freely within the territory of the Member States, or any other right conferred on her by virtue of her status as a Union citizen.”

The reasoning seems to be simply that the refusal to grant residence to Mr McCarthy did not have the effect of depriving Mrs McCarthy of the genuine enjoyment of the substance of the rights conferred by virtue of her status as a Union citizen. Quite why is unclear – it is arguable that she would be forced to leave the Union in order to live with her husband if he is not granted residence. One can speculate as to the underlying reasons for this judgment, but it really does just amount to speculation.

So, in short, it seems that Zambrano applies to children and does not necessarily apply to dual national spouses who have never moved between Member States and are not qualified persons.

This will surely not be the last word on the subject of citizenship rights and ‘constructive deportation’ of Union citizens by failure to grant residence to their family members.

Detained forever? Foreign prisoners and indefinite detention

“You don’t know what you are doing there, you don’t know how long you will be there. Sometimes it feels like you will be there forever”

Rabah, Algerian, held under immigration powers for two years after his criminal sentence finished.

Hundreds of foreign national prisoners are being held indefinitely, sometimes for years, when they can’t be removed from the country.  With no time limit on immigration detention powers, judges and the Home Office are operating within what one lawyer described to me as ‘a culture of indeterminate detention.’

It’s a story that is little known outside the usual circles of lawyers and campaigners. Terror suspects held for 28 days won public sympathy, as did those on control orders. But foreign prisoners, it seems, are a difficult cause.

The power to detain someone for immigration purposes is, in theory, limited in law. Since 1971, the Government has been able to hold someone while it tries to remove them from the UK. These powers were extended after the foreign prisoner debacle in 2006.

Charles Clarke lost his job when it was revealed that around a thousand foreign national prisoners had been released when their sentences ended, without being considered for removal. The Home Office came under huge pressure in the press and Clarke’s successor, John Reid, promised a new, tougher regime.

In 2007 the law was changed so that the Home Secretary could detain someone while considering whether or not to remove them.  This allowed the Government to detain foreign prisoners as soon as a sentence finished, even where there was no deportation order in place.

It’s probably true that most people in the UK, if they were asked, would say that foreigners who commit crimes should be made to leave.

But there were and still are major problems with this approach. Many people simply cannot be removed from the UK, though the reasons vary from case to case.

Despite being known as ‘foreign prisoners’ some have lived legally in the UK for many years. Somalis, for example, who were given  as children but then commit offences as adults.

Lawyers are fighting cases like these on the grounds that deportation would be a breach of a right to family life, under Article 8 of the European Convention on Human Rights.

In February a Supreme Court judgement supported this.  A woman, known as ZH, was told she could stay in the UK because she has two children here and because those children are British.

While these cases are fought out in the courts, the Home Office wants to keep people locked up, no matter how long it takes.

I interviewed a North African national, S, who refused to cooperate with the UK Border Agency when they tried to remove him. He had leave to remain but after a drug related jail sentence was given a deportation order.  His battle to stay led to him spending a further three years in detention.

With good legal help, S not only won compensation for unlawful detention but has also just won back his indefinite leave to remain.

One of the things the judge discovered was that the Home Office had lied in his bail hearings, claiming to have submitted a request for travel documents to his embassy when they hadn’t actually done so.

He speaks reverentially of his lawyers, Bindmans and Bail for Immigration Detainees, telling me: “While I was an immigration detainee in prison I didn’t know I had the right to apply for bail. I really believed the UKBA could hold me there for as long as they wanted. I thought they had the power to do that.”

So what does the Home Office say about this? Their line is that people are only detained for long periods where they are resisting their own removal.

But I met people who had spent years in detention despite being very willing to return home. Iranians or Eritreans for example, whose embassies won’t provide travel documents.

One man I met, Ahmed, is lost now, floating in a world without citizenship of any country. The Home Office say he can’t stay here, but the Iranian authorities won’t let him go back there either. After two years in detention he is now living on section 4 support in a bail hostel in north London. Aged 33, he told me: “They have made me tired, like an old man.”

The argument that policy has toughened up because of political pressure seems an obvious conclusion to draw. It is also backed up by a case currently before the Supreme Court, known as WL.

WL is a Congolese national who was part of a group claim for unlawful detention in 2008.

While the court was deciding whether or not he had been detained too long, the Home Office disclosed that they had been referring to a secret policy when detaining foreign prisoners at the end of a sentence.  While the published policy stated that there should be a presumption of release, this secret policy stressed a presumption of detention.

The judge decided that having a secret policy was unlawful, but lawyers and the Home Office are now arguing over whether an unlawful policy creates unlawful detention.

The Home Office say they would have detained WL anyway, even without reference to the secret policy. Lawyers say this argument is a nonsense.

For a layperson, like myself, it’s a complex case to follow, but it’s an important one.

The court is also examining the wider argument about what powers the Home Office should have to detain foreign prisoners when they are trying to remove them. The judges sat in November and a result is due sometime soon.

Meanwhile, WL has decided to return to the Congo.  After almost five years in immigration detention he couldn’t fight anymore. His lawyers will continue to fight on his behalf.

Whatever the court decides, politicians are still key in deciding what limits there should be on the power to detain for immigration purposes.

The UK is one of only a few countries to have opted out of the EU Removals Directive, that set a limit on immigration detention of 18 months. In reality, the UNHCR told me, most countries detain for far shorter periods than that.

Simon Hughes has campaigned against indefinite detention, but when I met him, he insisted that it’s not a result of policy decisions, just administrative failure. He disagrees with the idea that there should be a time limit on detention. He argues that public policy overrides human rights when it comes to non- UK citizens who commit crimes.

‘Citizenship is conditional’ he stressed, and told me that politicians of all stripes will not back a change to that approach.

The use of detention to control migration is on the increase, here and across Europe. When I spoke to Keith Vaz, head of the Home Affairs select committee, he told me that the real aim should be to ensure people don’t even make it to Europe.

Tougher, tighter controls are the future and it’s a future that is being shaped by politicians right now.

You can hear the interviews with Simon Hughes, Keith Vaz and the lawyers and ex detainees I spoke to on the Guardian website (click here).

Source: Free Movement

Asylumaid and UNHCR– research to map ‘stateless’ people

The definition of stateless people for the purpose of this research is quite broad and will include asylum seekers (awaiting a decision or refused) and those with refugee status who do not have British citizenship. Reasons for being stateless will include:

- Those without citizenship of any country due to arbitrary or discriminatory practices in countries of origin
- Those without citizenship of any country due to national boundary changes
- Technical or other issues such as differences in nationality laws between states, problems caused by gendered nationality laws, or where people lack the documentation necessary to prove their citizenship.

The research will also include ‘non-returnable persons’ which will include refused asylum seekers who have been refused a passport or travel document from their embassy or consulate in the UK which prevents his/her return to the country of presumed nationality.

If you have clients who would be willing to undertake an interview, please contact Asylumaid for an entry point questionnaire and a referral document.

Please email before Monday 10th January 2011 [email protected] or complete the referral online at www.asylumaid.org.uk using the link on the home page.

Alternatively, download, print and post to:
Asylum Aid,
Club Union House,
253-254 Upper Street,
London,
N1 1RY

or fax to: 020 7354 5620.

For any other information about the project please contact: Chris Nash [email protected] and Lucy Gregg [email protected]
Tel: 020 7354 9631 ext 221/222

Legal Status and Refugee Integration

Abstract:

The paper focuses on the legal dimension of integration and investigates the interface between legal status and refugee integration in the UK context. Legal status shapes one’s legal environment and therefore has significant implications for integration. For the purposes of this paper, integration is conceptualized as a multidimensional two-way process that starts upon arrival in the host state. This forms the basis for assessing whether the refugees’ journey from asylum seeker to citizen as set out in UK migration law supports their integration. This paper comes at a time when the UK Government is reforming its immigration system and making important changes to the path to British citizenship.

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Journal of Refugee Studies

Spouses face new rules on English

(BBC) – Ministers are bringing forward to the autumn measures requiring many immigrants marrying UK citizens to prove they have a command of English.

The measures, which Labour had planned to introduce in July 2011, will apply to partners coming to the UK from areas outside the EU, such as South Asia.

Home Secretary Theresa May said the move would “help promote integration”.

Campaigners said they supported efforts to help immigrants learn English, but the plans were discriminatory.

Under the new rules, anyone from outside the EU applying for a visa to join their spouse or partner will have to prove they have a basic command of English, to help them get by in daily life, before their application is approved.

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From Barking to Aberdeenshire

By Chris Searle

A renowned educationalist critiques recent Citizenship Foundation guidance for teachers on dealing with the BNP and other radical groups in schools.

Speaking in parliament in November 2006, the secretary of state for education and skills, Alan Johnson, described Community Cohesion (which all schools in Britain have a legal responsibility to promote) in the following words: ‘Working towards a society in which there is a common vision and sense of belonging by all communities, a society in which the diversity of people’s backgrounds and circumstances is appreciated and valued; in which similar life opportunities are available to all; and a society in which strong and positive relationships exist and continue to be developed in the workplace, in schools and in the wider community.’

This is a powerful and unambiguous affirmation of societal organisation in which racism and other forms of discrimination have no place and must be given no invitation to promote their ideas, expressions and practices. ‘Schools’ are included as vital institutions and forums where the communal unity of young people and their teachers is a bedrock, and its antagonist racism, must have no admission. Three and half decades ago when the fascist party, the National Front, a forerunner of the British National Party (BNP), was actively promoting racist hatred outside schools and occasionally obtaining local education authority permission to use schools to have their meetings, a generation of activist teachers dedicated to anti-racism, made sure that such meetings were always powerfully picketed and resisted.

I remember one such meeting in the early 1970s at Haggerston School in South Hackney where a group of local teachers including Blair Peach (who was killed by the Metropolitan Police, on their own recent admission, protesting against the National Front in Southall, West London in April 1979) managed to gain entry and disrupt the proceedings before being violently ejected. Teachers like Peach saw any presence of National Front members on or outside school premises as an outrage and they would take whatever expedient was necessary to prevent such an eventuality. They saw it as absolutely necessary as a means of protecting their students and their students’ families from the most dangerous, demeaning and divisive ideas and behaviour and as a first principle of being both a teacher and an active citizen.

Such committed and vigilant opposition is what continues to keep fascism at bay, and this was shown yet again during the May 2010 general and local elections campaigns, where the relentless work of anti-fascists such as those of Unite Against Fascism and Hope Not Hate made a crucial contribution to radically reducing the vote of the BNP in erstwhile strongholds in Stoke-on-Trent, Dudley and particularly in Barking and Dagenham where all twelve BNP councillors and parliamentary candidate and party leader Nick Griffin were overwhelmingly defeated.

Such results are strong stimuli for anti-racist action in schools and colleges and are also at powerful odds with the ‘advice’ offered to British teachers by the ‘Citizenship Foundation and Association for Citizenship Teaching’ in their ‘guidance’ document entitled ‘Dealing with the British National Party and other radical groups’, which ‘attempts to set out the key issues and arguments in order to help schools arrive at a clear policy which can be confidently implemented’. In this exposition, its authors, Billy Crombie and Don Rowe, dignify the BNP by labelling it a ‘radical group’ by virtue of it being one of a number of ‘democratic parties operating within the law’. They ask the question which Blair Peach answered with his protest and ultimately with his life, ‘Should BNP members or other radical parties be allowed in school?’ and posit two approaches. The first is the ‘prohibitive’ position which they state expresses the ‘no platform for racists’ strategy which anti-racist teachers have invoked and manifested for generations. They argue and caricature that such a position is ‘”wheeled out” reactively’ and likely to be ‘experienced as oppressive, selective, “politically correct” and anti-democratic’.

The second is the preferred ‘permissive’ approach which could involve schools inviting in ‘all parties’ including the BNP and hosting a ‘panel in which there is a broad balance of parliamentary candidates, including radical groups’. Thus is the green light given for ushering racist groups like the BNP into the heart of school life and curriculum, an open collusion with racism which needs to be rejected outright by teachers and school governors. That a ‘respectable’, apparently credible and close-to-government ‘charitable’ organisation like the Citizenship Foundation (which received funding from, amongst others, the Cabinet Office, the Department for Children, Schools and Families and the Ministry of Justice and has Cherie Blair QC as a trustee) is commending such an approach is particularly worrying for our schools, their curriculum and most crucially, their students. It is also completely contrary to Alan Johnson’s description of ‘Community Cohesion’.

The alternative strategy is exemplified in the lives and permanent opposition of teachers like Blair Peach. For whenever the BNP or other such antagonists are invited into schools using the bogus rubric of ‘democracy’ to which they have absolutely no alignment, such teachers will organise and resist within their own schools and others too. As parents and community, we must be ready to defend and support them. As a Scottish ‘concerned local resident’ alerted the local school’s constituent parent body and beyond during the pre-election period: ‘The BNP are to appear at a hustings at an Aberdeenshire High school this coming Wednesday. Please help to stop this from happening by calling the principal and voicing your concerns…’

From Aberdeenshire and everywhere, the call still resounds.

—-
FOOTNOTE

Billy Crombie and Don Rowe, 2009, Dealing with the British National Party and other radical groups: guidance for schools, Citizenship Foundation and Association for Citizenship Teaching is available at the link below.

HAT News is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

HAT News is not responsible for the content of external websites. Inclusion of a link does not constitute an endorsement.

> RELATED LINKS

Read the Dealing with the British National Party and other radical groups: guidance for schools here (http://www.wdwtwa.org.uk/files/Dealing_with_the_British_National_Party_and_other_radical_groups_-_Guidance_for_Schools.pdf) (pdf file, 120kb)

Read about the Maurice Smith Review here (http://www.dcsf.gov.uk/mauricesmithreview/)

UNHCR welcomes Tanzania’s decision to naturalize Burundian refugees

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New route to citizenship for refugees in Britain

UKBA – The UK Border Agency has announced that refugees and migrants with humanitarian protection in the UK will be allowed to apply for settlement and British citizenship under the current rules if their initial five-year permission to stay here will end between August 2010 and the date when the ‘earned citizenship’ system comes into force (scheduled for July 2011).

If you are granted refugee status or humanitarian protection in the UK, we initially give you permission to stay here (also known as ‘limited leave to remain’) for five years. Under the current rules, you can apply for permission to settle here permanently (also known as ‘indefinite leave to remain’) when your initial permission to stay ends. When you are given indefinite leave to remain, we say that you are ‘free of immigration time restrictions’. If you have been free of immigration time restrictions for one year, and you meet certain other requirements, you can apply for British citizenship. The Leave to remain and Can I be naturalised as a British citizen? sections of this website contain more information.

The UK government is now changing the way that migrants progress to British citizenship. We expect that the new system of ‘earned citizenship’, which includes a stage of ‘probationary citizenship’, will come into force in July 2011.

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