British Red Cross accused of discrimination
August 18, 2009 by Webmaster · Leave a Comment
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.
An employment tribunal yesterday (Mon) heard how Jackie Rutherford, a service assistant, was made redundant last year during the third phase of a restructure affecting the charity’s London operation.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
July 17, 2009 by Webmaster · Leave a Comment
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
The case for publicly-funded legal representation before the AST
July 11, 2009 by Webmaster · Leave a Comment
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’
June 27, 2009 by Webmaster · Leave a Comment
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
May 6, 2009 by Webmaster · Leave a Comment
In an unusual example of the Court of Appeal being less liberal than the Asylum and Immigration Tribunal, the AIT’s rather good decision in YS and YY (Paragraph 352D – British national sponsor former refugee) Ethiopia [2008] UKAIT 00093 was overturned by the Court of Appeal in DL (DRC) v ECO, Pretoria [2008] EWCA Civ 1420.
The Tribunal had decided that the immigration rules on refugee family reunion apply to anyone who was historically recognised as a refugee. This is important to those affected, as it means that the normal requirement to show adequate maintenance and accommodation without recourse to public funds is waived.
The Court of Appeal decided that the natural meaning of the words in the immigration rules and the use of the perfect tense suggest that those who were historically recognised as refugees but are no longer refugees cannot benefit from the refugee family reunion rules. The Court then also decides that refugee status ceases automatically on the grant of British citizenship – or, at least, it used to, until Directives 2004/83/EC and 2005/85/EC came into effect. Whether it still does is left as an open question.
The team in one of the two linked Court of Appeal cases is in the process of petitioning the House of Lords.
I am reliably informed that a significant new argument is being run in the petition, along the lines that section 76(3) of the Nationality, Immigration and Asylum Act 2002 requires a positive step for the removal of ILR granted to a refugee, which suggests that cessation of status is not necessarily automatic.
