Immigration lawyers seek guidance for children involved in appeals

A professional body for immigration lawyers has called for specific guidance to asylum and immigration tribunals on treatment of children involved in appeals.

The call came while Immigration Law Practitioners’ Association (ILPA) was responding to a consultation on the procedures for tribunals deciding appeals against Home Office decisions.

ILPA asserted while guidance for child and vulnerable witnesses in family courts was good, it wanted further guidance for tribunals that takes into account the range of circumstances for the children involved.

A solicitor and member of ILPA’s children’s sub-committee Syd Bolton said it was important that everything that is put in place makes the court a place where a child could be made to feel as comfortable as possible and be given the opportunity to be heard.

Immigration and Asylum Chamber of the new Upper Tribunal President Announced

The new president of the Immigration and Asylum Chamber of the new Upper Tribunal has been announced: Mr Justice Nicholas Blake QC. The appointment is effective as of 15 February 2010, when the unlamented Asylum and Immigration Tribunal is merged into the rest of the tribunal system.

The choice of appointment comes as a pleasant surprise to many. Nick Blake, as many in immigration law will continue to think of him, was primarily a claimant Counsel and was based at 2 Garden Court then latterly at Matrix Chambers (see his profile here). He was tirelessly active and very well regarded both as a man and as a brilliant lawyer.

Anyone expecting liberal decisions from him should not hold their breath, though. Andrew Collins was considered a liberal before his appointment as President but immigration lawyers were disappointed by many of his decisions. However, I would hope that this will put an end to some of the more obviously reactionary trends in the modern tribunal. The third party support saga, for example, was an unfortunate and personal legacy from the late Sir Henry Hodge. It seems a fair assumption that Nick Blake would never have gone off in that wrongheaded direction.

We should be grateful that someone of Mr Justice Blake’s calibre is willing to serve in this capacity. Most High Court judges find immigration and asylum cases an annoyance and this office is hardly a fast track to judicial advancement.

Free Movement

‘SADC mustn’t tolerate Zim’s abuse of Tribunal’

African lawyers have warned that Zimbabwe’s blatant disregard of regional court rulings was setting a bad precedence for respect of continental bodies and called on the African Union and the Southern African Development Community (SADC) to take decisive measures to defend their institutions of justice before they become irrelevant.

Reacting to Zimbabwe’s decision last month to withdraw from all cases involving the Windhoek-based SADC Tribunal, representatives of African bar associations and rule of law organisations castigated the announcement by Justice Minister Patrick Chinamasa that Harare did not recognise the authority of the regional court.

Chinamasa told the Tribunal that Harare would recognise its authority only after a protocol establishing the court was ratified by at least two-thirds of the 14-nation bloc’s members as is required under rules and procedures governing the regional grouping.

The African lawyers urged the AU and SADC to “encourage the government of Zimbabwe to comply with the decisions of the SADC Tribunal rather than to use disingenuous and convoluted legal arguments to destroy the Tribunal, in an apparent quest to avoid submitting to the rule of law”.

The regional and continental bodies should also strengthen and defend its institutions of justice when they make decisions, which are within their competencies, according to the lawyers who concluded an annual meeting in the Tanzanian town of Arusha last week.

“Failure by the SADC and AU leadership to vigorously defend regional and sub-regional judicial organs from such a blatant assault is likely to have a contagion effect throughout the continent,” the lawyers said in a communiqué.

The communiqué was signed by the SADC Lawyers Association, East Africa Law Society, West African Bar Association, Pan-African Lawyers’ Union, the Coalition for an Effective African Court on Human Rights, African Regional Forum of the International Bar Association and the International Commission of Jurists.

The SADC Tribunal last November dealt a heavy body blow to President Robert Mugabe’s controversial programme to seize white-owned farmland for redistribution to landless blacks when it ruled that the chaotic and often violent programme was discriminatory, racist and illegal under the SADC Treaty.

The regional court ordered Harare not to evict the 78 farmers and that it pays full compensation to those it had already forced off farms.

Mugabe publicly dismissed the ruling by the Namibia-based Tribunal, while his followers in the military and in his ZANU PF party defied the court order by continuing to seize more land from the few white farmers remaining in Zimbabwe.

Government farm seizures which started in 2000 have resulted in the majority of the about 4 000 white commercial farmers being forcibly ejected from their properties without being paid compensation for the land, which Mugabe has refused to pay for saying it was stolen from blacks in the first place.

Land redistribution, that Mugabe says was necessary to correct a “unjust and immoral” colonial land ownership system that reserved the best land for whites and banished blacks to poor soils, is blamed for plunging Zimbabwe into food shortages after Harare failed to support black villagers resettled on former white farms with inputs to maintain production. – ZimOnline

Minor crime doesn’t justify deportation, judges say

By Frances Webber

The government’s tabloid-driven policy to get tough on refugees who commit minor criminal offences has been dealt a blow by a recent legal ruling.

For the past few years, human rights lawyers and refugee support groups have expressed increasing concern over Home Office policy to treat refugees who commit minor offences as ‘foreign national criminals’ and deport them. Now, the Court of Appeal has held that regulations issued by the Home Office authorising deportation of refugees for relatively minor offences are illegal. A legal challenge was brought by a Serbian national, EN, who was a child when he arrived in the UK and was granted refugee status.[1] When he was sentenced to twelve months in a young offenders’ institution for burglary, the Home Office told him they proposed to deport him despite his status as a refugee, and the Asylum and Immigration Tribunal dismissed his appeal. The Court of Appeal allowed EN’s appeal and sent his case back to be reconsidered.

The Refugee Convention, to which the UK and most other countries are signatories, says that those recognised as refugees should not be sent home unless they are convicted of a ‘particularly serious’ crime and are a danger to the community of the country in which they live. The issue has been who defines what is a particularly serious crime. Refugee law experts, including one of the original drafters of the Convention and a judge on the International Court of Justice (the only legal body with the authority to interpret the Convention), say that only extremely serious crimes, such as murder, would justify withdrawing the protection of the Refugee Convention. But in 2002, parliament passed the Nationality, Immigration and Asylum Act, which deemed as ‘particularly serious crime’ any offence attracting a punishment of two years’ imprisonment or more, or any offence specified in Home Office regulations. In 2004, the Home Office issued the Specification of Particularly Serious Crime Regulations, which listed offences from genocide and hijacking to theft and criminal damage (which could be stealing a milk bottle or scratching the paintwork of a car) as ‘particularly serious crimes’.

In its recent ruling, the Court of Appeal said that these trivial offences could not rationally be considered ‘particularly serious’, and struck down the regulations as unlawful. The judges made the further point that even an offence carrying two years’ imprisonment may not be ‘particularly serious’ – so that the presumption of the section could be rebutted by the proposed deportee, like the further presumption that he or she represented a danger to the community. A presumption which could not be rebutted would, they said, not be compatible with the Refugee Convention.

The ruling offers hope to a considerable number of young refugees who have been threatened with deportation on the strength of petty crimes – which themselves are frequently an unacknowledged by-product of the traumas which caused them and their families to flee their countries of origin.

British Red Cross accused of discrimination

By John Plummer

A former British Red Cross employee has claimed she was unfairly dismissed by the humanitarian organisation and suffered race, age and disability discrimination.

Rutherford, who lives and worked in Essex, was offered the opportunity to apply for other positions at the charity’s centre at Beckenham, Kent but refused to apply.

She claimed the move would add three hours to her daily commute and £76 per month travel costs and that she should have been offered more suitable opportunities that made it easier for her to care for her disabled husband.

She also claimed that the London branch of the British Red Cross was getting rid of a lot of older women and that the consultation period for redundancies, which affected 17 other members of staff, was “a sham”.

Rutherford, a black woman of Guyanese origin, claims she would have been treated differently had she been a white woman.

Two former British Red Cross employees have agreed to support her as witnesses.

Pamela Chapman, operations manager for the London area of the British Red Cross, told the tribunal at Stratford, East London, that Rutherford had been treated no differently than any other member of staff. “A genuine redundancy situation appeared to exist,” said Chapman. “The claimant alleges the consultation was a sham. It was not.”

She said the charity had extended the consultation period and appointed an independent manager to oversee the restructuring process. “I absolutely refute any allegation of discrimination,” said Chapman.

The hearing is scheduled to finish on Friday.

Criminal offences and refugee status

The case for publicly-funded legal representation before the AST

Supporting justice evidence briefing ( 160kb)

Summary

Every year, more than half a million people use one of the various tribunals comprising the Tribunals Service to seek justice in a dispute about their employment, their welfare benefits or child support, their social care, their immigration status, or their child’s special educational needs.  Many of these tribunal users are poor, and vulnerable. But among them there is one group of especially vulnerable people who often have no money even to buy food, accommodation and other essentials.  They are the some 2,000 asylum seekers and failed asylum seekers who appeal to the Asylum Support Tribunal each year against a refusal or termination of asylum support by the UK Border Agency.

Based on our study of all the substantive decisions made by the Tribunal in the six-month period October 2008 to March 2009, this briefing shows this group of tribunal users to be notably disadvantaged in terms of two factors that bear heavily on their ability to present their case: their proficiency in English; and their socio-economic circumstances.  Most require an interpreter to participate in the tribunal hearing, and the great majority – 80 per cent – are either already homeless and/or destitute, or will become so if their appeal to the Tribunal is dismissed.  It also shows that legal representation before the Tribunal increases the chances of success from 39 per cent, to between 61 and 71 per cent – a ‘representation premium’ of 22-32 per cent.

Concluding that the Tribunal’s users are especially vulnerable and disadvantaged, relative to other tribunal users, this briefing – which is endorsed by the four organisations below – repeats our previous call for publicly-funded legal representation before the Tribunal. And it suggests that the annual up-front cost of providing such representation – of the order of £300,000 – could be met entirely from the savings that would flow from an evidently much needed improvement in the quality of the UK Border Agency’s initial decision-making on asylum support.

Supporting justice evidence briefing ( 160kb)

‘Let Us Farm, It’s Our Job’

By Servaas van den Bosch/IPS

A regional tribunal in Namibia has referred a controversial Zimbabwean land case to the next Southern African Development Community Summit of Heads of State, rejecting a last-minute application for postponement by Zimbabwe on Jun. 5.
The farmers who brought the case to the tribunal are eager to resume production amidst continuing farm seizures.

In his ruling, presiding justice Ariranga Pillay from Mauritius referred to a Nov. 29 judgement in the case of Mike Campbell & Another vs. the Government of Zimbabwe, which ordered the government to allow 75 white farmers to stay on their land and compensate three others whose farms were already expropriated. A day earlier, the court reserved judgement in the case of Luke Tembani, a black Zimbabwean farmer whose farm was also taken.

That November ruling condemned Zimbabwe’s land reform programme as discriminatory and in breach of the SADC Treaty and held Harare in contempt of court.

The latest judgement cites the continued violations of the order and President Robert Mugabe’s public statements that the tribunal’s decisions were “nonsense” and of “no consequence”.

Since December 2008, 155 farmers have been in the dock Zimbabwe for ‘illegal occupation’ of their property.

In what will be a test for the regional organisation, the judges referred the case to the SADC Summit to be held in the Democratic Republic of Congo in August.

In March, SADC suspended Madagascar from its ranks in reaction to a coup d’etat by Antananarivo mayor, Andry Rajoelina, but on the topic of Zimbabwe, Southern African leaders have remained mum.

“The judges are getting fed up and it is an embarrassment for Zimbabwe, but it is not sure whether SADC will act”, says Chris Jarrett, one of the expropriated farmers and vice-president of the Southern African Commercial Farmers Alliance (SACFA). “SADC might refer this to a ministerial study group, never to be heard of again.”

Meanwhile production in the region’s former breadbasket has halved, while living standards have dropped 80 percent over the past decade according to the Zimbabwe Papers, an assessment of the current situation in the country by nine African think tanks. Unemployment stands at almost 90 percent. More than half of the population is dependent on food aid.

Commercial farmers, who put their stock in Morgan Tsvangvirai’s Movement for Democratic Change (MDC), now complain that the four-month old unity government has not brought any improvement in the embattled agricultural sector.

They told the court of beatings, arson, intimidation and shootings of farm workers in recent months, as well as theft of equipment, forging of expropriation papers and illegal imprisonment.

“MDC is terrified to stick its neck out and back the tribunal,” says Jarrett.

Farm invasions have continued and the farmers accuse Tsvangvirai of downplaying the issue in order not to scare off foreign donors. Zimbabwe’s prime-minister on Jun. 7 embarked on a world tour to garner support from Western governments.

“The same government that destroys the production goes begging for support we don’t really need,” says Deon Theron, vice-president of the Zimbabwe’s Commercial Farmer’s Union (CFU). “Put us back on the farms and we will start producing again.”

“We have to get back to good old economics, take something out of the ground and add value to it,” agrees Jarrett.

But the farmers admit this is unlikely. “Ministers will come to your farm and agree it’s scandalous, but nothing will be done,” argues Ben Freeth of Mount Carmel Farm in Chegutu constituency.

According to Theron, the government’s ‘100-day plan’ to turn the agricultural sector around is ‘unrealistic’.

“A harvest of 1.6 million tonnes of maize is prescribed, but we will be lucky if we get 400.000 tonnes. The predicted 100,000 tonnes of wheat should be closer to 20,000 tonnes and instead of 150 million kilos of dairy products, we won’t produce more than 45 million kilos. The dairy herd has shrunk from 90,000 head to a third of that.

“We will not be able to feed ourselves and our own government prevents us from producing food. If SADC does not act now people will die of hunger and of disease and the region will have blood on its hands”.

Of the 4,500 white farmers in Zimbabwe, some 400 are left in the country. “Farmers usually seek refuge on a relative’s land,” says Peter Etheredge of Stockdale farm in Chegutu. “Perhaps 10 percent of the land is actively used.”

Etheredge lost his farm to Edna Madzongwe – chief of the Zimbabwean Senate and a heavyweight in Zanu-PF – in May. “As a consequence we have not been able to harvest. Six thousand tonnes of fruit, valued at four million dollars, are lost. She moved in just before the harvest, to reap what we sowed.”

Norman Tjombe from the Legal Assistance Centre in Windhoek helps Zimbabwean farmers to bring their case before the Tribunal. “Land reform needs to happen, but it’s not just about a legal framework. In Zimbabwe, as well as in Namibia and South Africa, race is the determining factor and that leads to an extremely dangerous situation. We need to get back to the drawing board.

“Between 1980 and 200 only the Zimbabwean elite benefited from land reform. This led to a popular uprising. Exactly the same patterns are emerging in Namibia and South Africa where spontaneous invasions are starting to occur.”

But Tjombe is sceptical that the court ruling will be upheld. “This is about Mugabe’s political survival, if 78 farmers are allowed to stay or get restitution, what about the 4,000 that have left?”

British citizens and refugee family reunion

Family reunion clarified

By Taffy Nyawanza | New Zimbabwe

THIS is a short commentary on a recent interesting case called YS and YY (Paragraph 352D, British national sponsor former refugee) Ethiopia [2008] UKAIT 00093.
In brief, the Tribunal ruling in that decision is that an appellant may succeed under the family reunion provisions even though his sponsor has since acquired British nationality.

The brief facts were that a Mrs Ayele came to the UK from Ethiopia in 1993 and claimed asylum. She was granted refugee status, and in 1998, she obtained Indefinite Leave to Remain in the UK. She then proceeded to naturalise as a British citizen.

In 2005, her two children who she had left behind in Ethiopia and in the care of her mother applied for family reunion. Mrs Ayale had not been able to bring them to the UK sooner than that, but had visited them in Ethiopia in 2002, and again in 2005, after obtaining British nationality.

The family reunion application by her two children was refused on the basis that their mother was no longer a refugee and could therefore not enjoy the benefits of family reunion.

The appeal was initially allowed. The Home Office applied for reconsideration and the matter came before two senior Immigration Judges at reconsideration.

The Home Office argued that because the appellant’s mother had become a British citizen at the date of the application, she could not apply for her children to join her in the UK as dependants of a refugee.

The argument was that someone who naturalises as a British citizen could not benefit from the family reunion provisions in paragraph 352 of the Immigration Rules, even if at some point in the past they had been a refugee.

The Home Office based their argument on the basis that the purpose of the specific rule was to give effect to the concept of family reunion for refugees and to enable family members to join those who have been granted refugee status in the UK.

Here, because the mother had acquired British citizenship, she had not retained her refugee status, and because she had travelled back to Ethiopia, she had therefore ceased to be a refugee.

Because she had become a British citizen, she could not at the same time be a refugee, it was argued, and she should therefore bring her children under different provisions of the Immigration Rules.

The decision of the Tribunal came down to a question of statutory interpretation. The Tribunal was persuaded to adopt the ordinary meaning of the words in paragraph 352D(i) and concluded that the words:-

“352D The requirements to be met by a person seeking leave to enter or remain in the United Kingdom [in order to join or remain with the parent who has been granted asylum in the United Kingdom] are that the appellant:

(i) is the child of a parent who has been granted asylum in the United Kingdom…”

meant that once a person had been granted asylum, they would always be able to show that they are refugees regardless of what may happen subsequently, e.g. the grant of British citizenship. In short, once a refugee always a refugee for this purpose. The grant of asylum was a fact that remained unchanged by any new status.

The Tribunal said, therefore, that what the sponsor needed to demonstrate, and which she had done, was that she was a person who had, in the past, been granted asylum in the United Kingdom.

This is an important decision, preserving as it does the benefits of family reunion to those whose immigration status may change with time.

I will put this in context. Those that have tried to bring their loved ones to join them in the UK under the Immigration Rules will know what an uphill task it is. There is a fee to pay at the point of application, and the sponsor must invariably prove that they can maintain and accommodate the applicant adequately, without recourse to public funds and third parties.

Family reunion, in sharp contrast, is free of charge at the point of application, and the sponsor does not even need to demonstrate that they work.
These are the real benefits that the YS and YY case has preserved for refugees who become British nationals.

Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk

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