This is the sort of story that the tabloids would love if it was about a sturdy British fight against a barmy EU directive or health and safety regulation. But because it’s about an outspoken Muslim academic’s fight against the homegrown petty bureaucracy of the UK Border Agency (UKBA), it’s unlikely to get any headlines in the Daily Mail, the Express or the Telegraph. Dr Muhammad Idrees Ahmad is a respected academic and prolific freelance writer whose topics include drone attacks, the Iraq and Afghanistan wars, the Israeli occupation of Palestine and the construction of fear in the war on terror. After finishing a doctorate at Strathclyde University and lecturing part-time in media studies, he was offered a post as a lecturer at De Montfort University in Leicester, on a salary of £35,000. Applying under the points-based system for a work visa to enable him to take up the post, he obtained all the requisite points for qualifications and English language proficiency.

But, the immigration rules require applicants to show that they will be self-sufficient and not use British benefits. Fair enough. But the way they must prove their self-sufficiency is to provide bank statements showing that in the three months before the application, their bank balance never slipped below £800. And Dr Idrees’s bank balance, which stood at £1500 when he applied, had been below the magic £800 mark for some time during the previous three months because of late payments for journalistic work. So although there is no doubt about his ability to support himself – he is better off now than he was as a student, and he has never needed to claim benefits – the UKBA refused the visa.

In a campaign supported by Scotland Against Criminalising Communities (SACC) (http://www.sacc.org.uk/), more than fifty academics wrote to Scottish first minister Alex Salmond and to home secretary Theresa May to protest the red tape and urge them to allow Dr Idrees to pursue his academic career in the UK. Many attended his appeal on 23 January in Glasgow, where the Tribunal allowed the appeal immediately. But the UKBA indicated that it might appeal the Tribunal’s decision, on the ground that the evidence he submitted did not meet the mandatory requirements of the rule. Its officials appear incapable of realising the injustice caused by so rigid an application of the self-sufficiency requirement.

According to the Scotsman, which covered the story, two firms of lawyers he consulted for advice told him not to waste his money on legal fees as he was bound to lose the appeal.[1] Dr Idrees’ case is by no means unique. Refusal of a visa on this ground is common, particularly for those applying from abroad. One applicant was refused after his account fell below £800 by just £1. Those refused visas abroad don’t even get a right of appeal. Some see the rigid rule as a devious way of cutting migrant numbers, a rash pledge made in the early days of the coalition government and proving more difficult than anticipated.

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FOOTNOTE

[1] ‘Lecturer faced deportation for having less than £800′ (http://www.scotsman.com/the-scotsman/scotland/lecturer_faced_deportation_for_having_less_than_800_1_2073391), Scotsman, 24 January 2012. Some of Dr Muhammad Idrees Ahmad’s work can be seen: here ( http://fanonite.org/articles/)

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Source: Guardian

A report on the UK Border Agency’s management of foreign national offenders bears little reaction to the press’ coverage.

‘The 5,000 crooks we can’t deport’: was the Sun headline which was repeated, with more or less polite variations, across Britain’s press on 27 October, from the Express to the Guardian, the message all the papers deemed to be the story behind Chief Inspector of the UKBA John Vine’s report.[1] The message conveyed by the headline is one of embodied menace: threatening alien criminals who can’t be got rid of roaming our streets.

This is not the main story in Vine’s report. He does complain that although UKBA officials know how difficult and time-consuming it is to get emergency travel documents from certain embassies, they appear incapable of starting the process during prisoners’ sentences, so that deportations are needlessly delayed for months. But his main complaint against UKBA is the ‘fear and reluctance to release’ FNPs at the end of their sentence, which means that 97 per cent of a sample of 97 prisoners were held under Immigration Act powers at the end of their sentence and that by January 2011 the average length of post-sentence detention had gone up to 190 days – that is six months and ten days. Over a quarter of those detained are now held for over a year. Only 109 FNPs were released by immigration officers, while over 1,100 were released on bail by the courts (which are themselves extremely wary of releasing persons whom the UKBA wants to deport). Vine refers to a ‘culture where detention is the norm’ despite official policy of a presumption in favour of liberty, where authority to detain resides with a fairly junior officer, while authority to release must be sought from a far higher grade. It is, too, a culture of disrespect, where FNPs are frequently left in the dark about the progression of their cases, and sometimes about the reason for the decision to deport them; where confidential details of unrelated third parties are contained in files for no reason and details of acquitted foreign nationals are not deleted from the system, in disregard of data protection laws. The report deprecated these failings, and recommended that UKBA get better at releasing FNPs.

Vine found a similar aversion to risk, and disrespect for FNPs’ rights, in the way UKBA staff deal with their applications to stay. Nearly a third of FNPs’ appeals were successful in the year to January 2011, mostly on human rights grounds. Bearing in mind how cautious the courts are about allowing offenders’ appeals against deportation, this is a high proportion of appeals (425 in number). UKBA had granted permission to stay to only 151 offenders, prompting Vine to recommend that the officials pay more regard to factors such as family ties, the welfare of UK-born children, and conditions in the proposed destination country to reduce the disparity.

But what the inspector sees as a defect in officials’ attitudes and training, the right-wing press and politicians see as a defect in the courts, which they claim are allowing too many human rights appeals by undeserving criminals. No matter what inspectors say, and no matter how meticulously the courts assess the evidence before releasing FNPs or allowing their appeals, the media bang the same old anti-Human Rights Act drum, ever more insistently. Foreign prisoners don’t have rights, they say, providing vociferous support for home secretary Theresa May and immigration minister Damien Green’s mission to allow family and private life rights to be diluted or bypassed in order to deport FNPs.

Senior judges captured

And now, Britain’s senior judges are repeating the mantra. The Lord Chief Justice, Lord Judge, and the presiding Supreme Court judge, Lord Phillips, neither known as the strongest human rights defenders in the judiciary, told the Joint Parliamentary Committee on Human Rights that the UK’s courts should not follow rulings of the European Court of Human Rights so closely.[2] Philips also claimed that Article 8 of the European Convention on Human Rights, which requires public bodies to respect individuals’ private and family life, was ‘baffling’ for judges, despite rulings by the Supreme Court under the leadership of his predecessor Lord Bingham which were hailed as models of clarity, humanity and wisdom. The two judges told the committee that the European Human Rights Court should have to give permission before cases are brought there – a baffling observation in the light of the fact that well over 95 per cent of applications to the court are rejected at a very preliminary stage and a further four per cent or so are weeded out as ‘inadmissible’. Echoing the campaign of the Right, the judges called for much greater freedom for British judges in interpreting and applying the Human Rights Convention.

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FOOTNOTE

[1] John Vine, Chief Inspector of UKBA, ICIUKBA Annual Report (http://icinspector.independent.gov.uk/wp-content/uploads/2011/02/ICIUKBA-Annual-Report-2010_11-final-web.pdf) (pdf file,1.3mb). [2] ‘UK courts following European human rights rulings too strictly, judges warn’, Guardian, 15 November 2011.

Today’s report by the Children’s Commissioner, Landing in Dover, exposes gross double standards by UK Border Agency officials. The report reveals the existence of a so called ‘gentleman’s agreement’ operating at the south coast ports whereby an unaccompanied child who did not make an immediate asylum claim would be returned to France within 24 hours of arrival in the UK with no welfare or other assessment and no referral to social services.

The agreement was in place from at least 1995 through to November 2011, when the Children’s Commissioner discovered the existence of the agreement. At this point the practice was halted immediately by the new Chief Executive of UKBA, the inappropriately named Rob Whiteman.

The practice of returning unaccompanied children with no welfare assessment is so obviously in breach of the duty to safeguard and promote the welfare of children imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 that it beggars belief that UKBA officials continued with the practice. The practice was also obviously in breach of all the UKBA guidance to its staff about trafficking, which encourages staff to be proactive and alert in seeking to identify potential victims of trafficking.

Not only that, but the investigation found that the UK Border Agency is still detaining children despite Government commitments to the contrary:

The report finds that children are in fact not currently being held for the ‘shortest appropriate period of time’. Rather they are detained whilst significant interviews that will inevitably bear on their prospects of being granted permission to stay in the UK are conducted. From the cases we have considered in preparation of this report, we find that the local authority is only informed of the child’s arrival several hours after initial detention and well into the interviewing process. The report concludes that interviewing children in depth immediately on arrival is unnecessary and not in their best interests and should be reconsidered.

Even where children said that they were tired or ill UKBA staff would apparently carry on regardless and press on with further interviews without referring the child to social services. The report identifies the following failings:

• Children are generally not fit for interview due to illness, hunger, tiredness, fear or a combination of these factors.
• The length of time between being placed into detention and release into care is too long. This is due to both the numbers of interviews routinely undertaken and the waiting times between the interviews.
• Telephone interpreting is generally used at the interviews and is not, in our view, ‘fit for purpose’.
• Children are in practice unable to instruct a legal representative or in most cases have an independent Responsible Adult present during interviews and yet the interviews can be relied upon by UKBA in the asylum decision.
• Even in the absence of a legal representative or independent adult, children are required to sign the screening interview record, confirm its contents are correct and confirm that they have understood legal warnings and instructions from the immigration officer.

This is all pretty horrifying, and it should inform judges and lawyers when they consider whether weight should be attached to information from screening interviews of unaccompanied children.

The good intentions of Ministers, senior managers and the people who write the UKBA policy documents are all very well, but what matters is what happens on the ground. Culture change is always hard but the UK Border Agency has a long, long way go before it can realistically assert that its staff take children’s welfare seriously.

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Source: Croydon Advertiser

Entitled From Deprivation to Liberty: Alternatives to detention in Belgium, Germany and the UK , the report, which was launched in the European Parliament, is based on in-depth interviews with 25 migrants participating in alternatives-to-detention programmes in the three countries.

The report says that although community-based measures are clearly a step in the right direction, unless they are accompanied by appropriate legal, social and other support, migrants can be forced into destitution.

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Source: Ekklesia

The Chief Inspector of the UK Border Agency, John Vine, has published a global review of entry clearance decision making. The findings are strongly critical in important respects. The sample size was nearly 1,500 case files from every entry clearance post, so the review certainly was a global one. Vine states as follows in his forward to the report:

What is the psychological effect upon employers of the increasing stringency of their obligations under the Points Based System?

The civil penalties under section 15 of the Immigration and Nationality Act 2006, which, in February of 2008, created the possibility of a £10,000 penalty to be paid by an employer for each person he or she is found to employ who does not have permission to be in the UK, or whose permission does not entitle them to work. Employers are liable for this penalty whether or not they knew that their employee didn’t have the necessary leave to enter or remain in the UK or permission to work.

If they did have such knowledge employers may be prosecuted under section 21 of the same Act – and could be sent to prison for up to 6 months.

But the dangers facing employers don’t end there. Unless they keep up with their reporting obligations with regard to employees from outside the European Economic Area (the “EEA”) as Tier 2 Sponsors – the UKBA could remove their Tier 2 Sponsor licence – which could be nothing short of catastrophic for those employers dependent upon skilled labour from outside the EEA.

So it is not mere hyperbole to say that the joint effect of the regimes imposed on sponsors is a kind of enhanced vigilance bordering on paranoia.

The recent Employment Appeal Tribunal judgment in H Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA demonstrates how employers’ concerns as to the lawfulness of a person’s employment can lead to injustice.

The Claimant, a Nigerian national with a Spanish husband, was working for the Respondent at an ASDA store when, on 8 July 2010, the Respondent suspended her without pay and demanded evidence of her permission to work in the UK. The Respondent did this because the Claimant’s passport had a UKBA endorsement indicating that she had been “given” the right to reside in the UK as the spouse of an EEA national exercising Treaty rights in the UK until 8 July 2010. The Claimant told the Respondent that she’d applied to the UKBA for renewal of her endorsement. The Respondent then contacted the UKBA themselves.

The UKBA said that they had checked their records and could not confirm the Claimant’s entitlement to work and, furthermore, unless the Claimant did provide the Respondent with evidence of her entitlement to work:

“[she would] not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker”.

The Respondent sacked the Claimant accordingly. Not long after the UKBA wrote to the Respondent, it provided a further letter to the Claimant, in which it said that until her application had been decided she would:

“be treated for immigration purposes as a family member of a legally resident EEA national and, as such, [she was] free to live and work in the UK”.

The Respondent therefore reinstated her to her job.

The Claimant’s case in the Employment Tribunal, and on which she succeeded after her first instance appeal was dismissed, was that she had been wrongly suspended without pay and that she had always been entitled to work in the UK as the family member of a EEA national. It did not matter, as His Honour Judge McMullen QC accepted, that she did not have the necessary residence documents. Those documents did not give her the right to work – they were simply evidence of the existence of that right, which came into being because the Claimant was married to an EEA national. This was clear from Article 25 of the Citizens’ Directive:

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

The Claimant was accordingly awarded her pay for the period in which her employment had been suspended.

At first instance the judge had found that the Respondent had been entitled to act as it had done because of its concerns about being penalised under section 15 of the Immigration and Nationality Act 2006. That judgment was however overturned because it was clear that that section of that Act had no application to the Claimant.

What is interesting about all this is the role of the employer as the delegated enforcer of immigration control. A sense of paranoia will inevitably lead people entrusted with such a role into a trigger happy response to a concern about their employees’ entitlement to work. This is a happy example of someone who was able to obtain redress against the effect of such a disposition on her.

Heaven knows how many examples there are to the contrary, but perhaps it is naive to imagine that they are anything other than what was and is intended.

Kathryn Bradbury

Gherson Immigration Lawyers

www.gherson.com

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Source: Guardian

The men demonstrated outside Lunar House, the UK Border Agency’s headquarters in Wellesley Road, for nearly five weeks after their initial applications for asylum were turned down.

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Source: Guardian