No need to detain refugees and undocumented migrants

Detaining migrants is unnecessary because more humane and less costly non-custodial alternatives exist, according to the latest report from the Jesuit Refugee Service (JRS).

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

Entry clearance decision making: a global review

Source: (Free Movement)

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:

Sponsors, paranoia and unfair dismissal

Source: Free Movement

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

Charter deportation flight to Sri Lanka condemned

Campaigners and human rights activists have condemned a flight chartered by the UK Border Agency to return up to 50 Sri Lankan asylum seekers.

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Source: Guardian

Iranians who held 37-day hunger strike granted asylum

THREE Iranian asylum-seekers who staged a 37-day hunger strike have won their battle to remain in the UK.

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

Asylum seekers ordered back to UK

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’.

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Source: Yorkshire Post

UKBA attacked for ‘dumping’ missing cases

MPs have accused the UK Border Agency of losing track of a population of asylum seekers and migrants equivalent to the size of Cambridge.

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Source: BBC News

Female asylum seekers struggle against UK culture of disbelief

(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.

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Important new case on children

It’s a case

In a judgment handed down yesterday HH Judge Anthony Thornton QC has given some very interesting guidance on the scope of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 following the guidance of the Supreme Court in the landmark case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. The case is R (on the application of Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin).

The facts are not that unusual. An Ecuadorian woman entered the UK illegally in 2001 with her mother. She was pregnant at that time and gave birth in 2002. The child grew up and attended school in the UK and had never had any contact with her father or with Ecuador generally. All three made a joint application under Article 8 ECHR. The application was refused on several grounds on several occasions. The reasons included:

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Source: Free Movement

Government opts out of asylum directives

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.

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Source: Economic Times

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