Archives For Children

handcuffs

handcuffsFinally, there has been a breakthrough in cases where victims of trafficking find themselves prosecuted and convicted here in the UK for engaging in the very activity into which the victim was forced. It may seem strange that it is the victims of trafficking that have ended up with criminal convictions rather than the traffickers, but that is precisely the situation so far contrived by mindless prosecutors, poorly informed defence lawyers and the courts.

In a case in which the victims are referred to only by their initials, L, HVN, THN and T v R [2013] EWCA Crim 991, with the Children’s Commissioner for England and the Equality and Human Rights Commission intervening, the Court of Appeal has quashed the convictions of four such trafficking victims. This has been a particular problem for young Vietnamese trafficked to work in cannabis factories and then get prosecuted for drug production. Three of the four cases were examples of this.

THN had pleaded guilty to to producing a Class B controlled drug, cannabis. He had been 17 at the time of arrest and it was clear he had been trafficked to the UK to work in a cannabis factory. His lawyers initially pursued this defence but seem to have dropped it, and he pleaded guilty. He was later in custody referred by chance to the UK Border Agency and accepted as a victim of trafficking. Tragically, by the time of the hearing in the Court of Appeal he had disappeared and it was thought he had been re-trafficked – forced back into the arms of the traffickers because we prosecuted rather than protected him.

T was eventually accepted by social services to have been a child at the time of arrest, also for cannabis cultivation. He has originally been ‘looked after’ by Kent County Council, but was one of the many such children in care that Kent manages to lose every year. The issue of whether T had been trafficked was basically ignored at his trial but the UK Border Agency eventually accepted that he was a victim of trafficking. You can see an interview with him by Channel 4 News below. The extent to which he was let down by his own lawyers and the criminal justice system is just staggering.

HVN was first brought to the attention of police when spotted by members of the public being moved by men into a house with his hands bound. He was accepted to be 16.  He was prosecuted, he pleaded guilty and despite the prosecution suggesting that the matter was not serious a judge disagreed and transferred the case to the Crown court. HVN was accepted to be a victim of trafficking by the UK Border Agency but neither the prosecution nor the defence were informed. HVN pleaded guilty.

L was in her mid thirties and the UK Border Agency eventually accepted that she had been trafficked to the UK for sexual exploitation. However, throughout her prosecution for possession of a false identity document, a charge to which she pleaded guilty, no-one thought her account of being trafficked was relevant. It was only when she was in custody that she was referred by a support group (not her lawyers) to the Poppy Project and then to the UK Border Agency.

The Court gives guidance for future treatment of potential trafficking victims. Essentially, the Court finds that where a person has been a victim of trafficking that is a consideration which will diminish or even extinguish culpability. A victim of trafficking may have been compelled to commit crimes and if such a person is prosecuted then the court should find such a prosecution an abuse of process.

The following paragraphs of Lord Judge’s judgment for the Court are particularly relevant:

“… It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from prosecution, just because he or she was or has been trafficked, nor for that reason alone, that a substantive defence to a criminal charge is available to a victim of trafficking. What, however, is clearly established, and numerous different papers, reports and decided cases have demonstrated, is that when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings require to be approached with the greatest sensitivity. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.” (para 13)

“ … [What] is required in the context of the prosecutorial decision to proceed is a level of protection from prosecution or punishment for trafficked victims who have been compelled to commit criminal offences. These arrangements should follow the “basic principles” of our legal system. In this jurisdiction that protection is provided by the exercise by the “abuse of process” jurisdiction.” (para 14)

“… In any case, where it is necessary to do so, whether issues of trafficking or other questions arise, the court reviews the decision to prosecute through the exercise of the jurisdiction to stay. The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim’s subservient situation, and the international obligations to which the United Kingdom is a party. The role of the court replicates its role in relation to agents provocateurs. It stands between the prosecution and the victim of trafficking where the crimes are committed as an aspect of the victim’s exploitation.” (para 16)

“…. In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. The fears that the exercise of the jurisdiction to stay will be inadequate are groundless.” (para 17)

“As we have already explained the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences of which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.” (para 33)

Fantastic result and well done to a large contingent from Garden Court, Henry Blaxland QC, Stephen Knafler QC, Nadine Finch, Michelle Brewer and Shu Shin Luh, and to Parosha Chandran at 1 Pump Court.

Anyone looking for legal resources or advice on trafficking law and policy should head over to the ATLeP website.

United by Love - Divided by Theresa May, JCWI Campaign
United by Love - Divided by Theresa May, JCWI Campaign

United by Love – Divided by Theresa May, JCWI Campaign

Last week, Free Movement posted the fruits of a FoI request disclosing the statistics in relation to partner applications from pre- and post-July 2012.  These figures were then analysed and fair conclusions were drawn in relation to gender discrimination on the basis that female sponsors generally earn less than male ones and therefore would find it more difficult to meet the new income threshold for maintenance.

Last week, also saw the publication of the All-Party Parliamentary Group on Migration’s inquiry entitled “Report of the Inquiry into New Family Migration Rules” June 2013. This is a welcome report, which looked in particular at the new minimum income threshold of £18,600 (with the corresponding rises when children are included in the application) and the new rules concerning adult dependent relatives applying to come to the UK.

The Committee details that it received an impressive level of submissions and evidence from a wide range of participants:  MPs, NGOs, charities, legal organisations, lawyers, business, individuals affected etc…

Following their inquiry, the Committee reached the following 5 findings, again all very welcome:

  • British citizens and permanent residents in the UK, including persons in full-time employment, have been separated from their non-EEA partner and in some cases their children as a result of the new income threshold
  • British citizens and permanent residents have been prevented from returning to the UK with their non-EEA partner and any children as a result of the new income threshold
  • Children, including British children, have been indefinitely separated from a non EEA parent as a result of the new income threshold
  • The current permitted sources in order to meet the income requirement may not fully reflect the resources available to some families (e.g. applicant’s actual or potential income; cash savings only; self-employment income in the current year not being counted; third party support not being allowed etc…)
  • The adult dependent relative visa category appears in effect to have been closed.

The following is also of note:

  • Having heard from a number of UK sponsors in fulltime employment at or above the National Minimum Wage (currently £6.19 per hour, or £12,855 per annum), who reported that they were unable to meet the income requirement, the Committee considered wider evidence which suggests that 47% of the UK working population in 2012 would fail to meet the income level in order to sponsor a non-EEA partner.
  • Other submissions suggested that, because of variations in earnings between regions within the UK, the income requirement has had a particular impact on UK sponsors based outside London and the South East.
  • For the lovers of statistics, there are plenty more to delve into at pp.19-20, p.39 including on the ensuing delay in processing times since the new rules at p.41 of the report
  • Lower-earning sections of the UK working population including women (see blog post last week), young adults, elderly people, and some ethnic minority groups also reported difficulties.

Looking more closely at the issue affecting children, the Committee drew on previous findings by the UK Border Agency Chief Inspector, John Vine, who reported in January 2013 that he had found no evidence that the best interests of children had been referred to specifically in a sample of entry clearance spouse/partner refusals which involved children in the UK.

Specifically with regards to the new rules in relation to adult dependent relatives, the Committee records the frequently heard evidence of a ‘catch 22’ situation, within which UK sponsors, who are fortunate to have the means to support an elderly relative in the UK, are then considered able to do so overseas and therefore would fail to meet the rules.  The Committee also heard that elderly relatives are required to be all but “vegetating” before they can be sponsored to come to the UK.

Of particular note, the British Medical Association, which gave evidence before the Committee, suggested that the NHS has already lost some skilled doctors (both foreign and British it would seem) since July 2012 because they have had to return overseas in order to care for their elderly relative.  The BMA specifically warned of a deterrent effect in the long-term on such international talent as a result.

The Committee’s recommendations are as follows:

Minimum income requirement

1. Government should commission an independent review of the minimum income requirement, drawing on evidence of its impacts since July 2012. The review should aim to establish whether the current level of the income requirement and permitted sources in order to meet it represent an appropriate balance between the different interests in this area.

On the basis of evidence received in this inquiry, we would propose the following specific matters for consideration within the review:

2. The level of the income requirement should be reviewed with a view to minimising any particular impacts on UK sponsors as a result of their region, gender, age or ethnicity.

3. The family migration rules should ensure that children are supported to live with their parents in the UK where their best interests require this.  Decision-makers should ensure that duties to consider the best interests of children are fully discharged when deciding non-EEA partner applications.  Consideration should be given to enabling decision-makers to grant entry clearance where the best interests of children require it.

4. The list of permitted sources of funds should be reviewed to ensure that they fully reflect the resources available to families. In particular:

  • Prospective non-EEA partner earnings should be considered for inclusion in the rules, for example in circumstances where the non-EEA partner has a firm offer of employment or self-employment in the UK, or where there is reasonable expectation that the nonEEA partner will gain employment or self-employment after entering the UK;
  • The rules relating to income from cash savings and from self-employment should be reviewed;
  • Third party support, particularly that provided by a close family member such as a parent, should be considered for inclusion in the rules.

5. The current evidential requirements in Appendix FM-SE should be reviewed, in order to ensure that they are clear and easy for applicants to understand.

6. The Home Office should ensure that full and regular data relating to applications made under the non-EEA partner and adult dependent relatives route is made available, in order to support scrutiny of the impacts of policy changes in this area. This should include adequate disaggregation of family migration data within the International Passenger Survey and Home Office statistics to fully reflect different migrant inflows. The Home Office should make public, where possible, the reasons for refusal of applications by non-EEA partners and adult dependents. The current lack of reliable data on family migrants after their arrival here makes it difficult to study the short and long-term outcomes of family migration to the UK and this should be addressed.

Adult dependents

7. Government should review the rules affecting adult dependents. Consideration should be given to amending the rules to ensure that:

  • Where the UK sponsor can demonstrate their ability to provide full financial support to an adult dependent relative in the UK, or where the relative themselves has the means to financially support themselves, they are able to do so;
  • An adult dependent relative can be eligible for sponsorship where they are in need of support from the UK sponsor, but before they become fully physically dependent.

So all useful information to bolster any pending Article 8 and JR challenges but in the meantime, it remains a frustrating and drawn-out struggle for too many.  All the more frustrating when many of the recommendations above simply amount to reverting to the previous requirements and practices under Part 8 of the Immigration Rules.  This is obviously no criticism of the Committee’s report but rather of the Government’s meddling with the Rules in the first place, which under Part 8 arguably provided a logical and working system for many many years prior to July 2012.

Both the Children’s Commissioner and ILPA have supported the Committee’s findings and recommendations and both have issued their own respective briefings in preparation for a debate in Parliament “Effects of the new family migration rules”, which took place yesterday (Children’s Commissioner’s briefing & ILPA’s).

ILPA reiterates amongst other submissions that the new income threshold gives rise to discrimination on the basis of gender due to average earnings of women in the UK being lower than those of men, more women than men working part-time and maternity leave and pay affecting women’s earnings.  As we have seen, this is then exacerbated in entry clearance cases where only the earnings of the sponsor are taken into account.

In addition, there is also discrimination on the grounds of race since average earnings are lower for persons of certain ethnicities and ILPA cites the following two sources:  European Commission, Gender Pay Gap statistics, United Kingdom and Migration Advisory Committee, 2011, Review of the minimum income requirement for sponsorship under the family migration route.

ILPA repeated its call for the Government to change the rules to:

• Allow those who can demonstrate their ability to provide full financial support to an adult dependent relative in the UK, or where the relative themselves has the means to financially support themselves, to bring their elderly relatives to the UK;

• Make clear that an adult dependent relative need not be physically helpless to meet the requirements of the rules;

• Take into account the prospective earnings of both partners including in circumstances where the non-EEA partner has a firm offer of employment or self-employment in the UK;

• Treat income from self-employment in the same way as income from employment;

• Permit third party support;

• Not require shares etc. to be converted into cash before taking them into account;

• Strip out prescriptive evidential requirements that create a rigid system and focus on what needs to be proven, rather than restricting the means by which proof can be offered. Statement of Changes HC 1039, which gave a small amount of discretion as to evidence and allowed further evidence to be requested, showed that nothing prevents a pragmatic purposive approach to evidence.

More to follow on the debate in Parliament yesterday…

children hands world

children hands worldThe Administrative Court declared that a policy which does not give effect to section 55 of the Borders, Citizenship and Immigration Act 2009 is not lawful.  The excellent Amanda Weston of Tooks Chambers for the Claimants and Joanne Rothwell of No 5 CHambers for the intervener, Coram Children’s Legal Centre (CCLC), argued that where there had been findings that the removal of a child would breach his or her human rights, the SSHD’s failure to consider granting Indefinite Leave to Remain (ILR), when requested to do so, and to, instead, grant Discretionary Leave (DL) as a matter of course is wrong.

Holman J in SM & Ors v Secretary of State for the Home Department [2013] EWHC 1144 (Admin) considered the application for Judicial Review lodged on behalf of the Claimants.  The Claimants were all children, referred to as SM, TM, SR, DB, and JD and aged between 10 and 6 years old. They are all related to each other either as siblings or as cousins (or in the case of JD as aunt/nieces/nephew). All were born in the United Kingdom at times when their respective mothers were overstayers. All have lived continuously in the UK. There are also other members of their extended family living here in the UK.

Each of the children’s/family’s appeals were allowed by an Immigration Judge under Article 8 of the ECHR.  These appeals were not challenged and the Claimants were subsequently granted 3 years DL under the DL policy, version dated 27 October 2009.  The minor Claimants had however requested that the SSHD grant them ILR.  Following the grant of DL instead, they sought to judicially review this decision arguing that if s55 had been correctly interpreted, they would qualify for a grant of ILR.

There were essentially two issues to be decided in the case:

  • Is the DL policy document and instruction capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence?  If not, the policy is unlawful, and the decisions under review, which were taken by reference to it, should be reconsidered.
  • If the policy is capable of being read and applied in a way which is compliant with section 55 and the associated jurisprudence, did the actual decision-maker fail to read and apply it correctly ? If he did fail, the decisions should also be reconsidered.

Section 55 of the Borders, Citizenship and Immigration Act 2009, which came into force on 2 November 2009, provides as follows:

55 (1) The Secretary of State must make arrangements for ensuring that –

(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b) …..

(2) The functions referred to in subsection (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum or nationality …; (b) …; (c) …; (d)…

(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

Submissions were put forward by the Claimants and the intervener that children cannot be expected to put their personal development on hold, much less comply with the provision that there are to be continuous and uncertain applications for DL in order to regularise the children’s stay.  Also the overarching principle argued by counsel was that, where a child’s future lies in the United Kingdom then “it is clear from the outset that a child’s future is going to be in the UK and therefore ILR should have followed the SSHD’s decision.

Holman J stated that the policy itself was not compliant with s55:

In my view the effect of the language of the policy and instruction document as a whole is to preclude the decision maker from even considering an applicant, whether adult or child, as being eligible for ILR until he or she has completed at least six years of DL. The use of the word “normally” is explained by the reasons I have described and does not of itself admit of any exception or qualification in relation to children. The general words in the introduction are excluded from the consideration of the duration of leave by the clear language of the later passages.

He concluded by stating that this blanket policy of granting 3 years DL was in fact a direct contradiction of the SSHD’s policy that “every child matters”.  The decision did not take into account the fact that the required future applications for further DL would create anxiety and for example, inconvenience a child’s schooling and impede their access to healthcare.  This would, in effect, have an adverse effect on the child, even bearing in mind the continuing leave provisions under section 3C of the Immigration Act 1971.

The conclusion was as follows:

In my view the relevant 2009 Discretionary Leave policy and instruction document is unlawful. It effectively precludes case specific consideration of the welfare of the child concerned in making the discretionary decision whether to grant limited DL or ILR. Further, and contrary to the submissions of Ms Broadfoot, that is the way senior officials at the UKBA intend the policy to be applied, at all events save in an “exceptional case” which “very rarely arises if at all.” The policy and instruction fail to give proper effect to the statutory duty under section 55. Even if the policy can be read in the way contended for by Ms Broadfoot (but not by the senior official, Mr Gallagher), that is not the way in which the actual decision maker, Mr Harrison, read and applied it. He, too, would graft on a need for exceptional or compelling features.

These reasons, separately or cumulatively, render the actual decisions in the case of each claimant unlawful. I will allow the claims for judicial review and order the Secretary of State to reconsider each claim with a fresh mind and properly applying section 55.

The Court, it seems, is taking a realistic view on the impact and uncertainty faced by a minor who is granted limited leave as an acknowledgement of his or her Article 8 rights established in the UK and who will realistically and eventually be granted ILR. This is a welcome decision for minors who do not of course realise the implications of these decisions and often remain in a state of limbo for a number years before the SSHD gets round to granting either the extension of DL or, in the end, ILR.

Having said that, the decision in SM and others potentially conflicts with an earlier decision of the Administrative Court in the case of Alladin v SSHD [2013] EWHC 1406 (Admin), published on 30 April 2013.  Arguably, this decision was not premised on findings by an Immigration Judge allowing the appeal under article 8. In addition, it is also unclear which version of the policy guidance was being considered.

However it does seem that HHJ Allan Gore QC, sitting as a Deputy High Court Judge, in Alladin adopted a more conservative approach and gave much more lea-way to the SSHD’s policies and areas of discretion compared to Holman J in SM and others, who, as we’ve seen above, interpreted the remit of the s.55 duties much more widely. This conflict within the High Court will presumably call for guidance from the Court of Appeal, so there may be more on this soon!

european-flag2

european-flag2Confirming the earlier Opinion in the same case the Court of Justice of the European Union has today held in MA and Others v UK (Case C‑648/11), in effect, that the Dublin II regulation does not apply to separated children who have claimed asylum. The key conclusion is as follows:

…where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the ‘Member State responsible’

‘Dublin II’ is the informal name for Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. This is the legal mechanism by which an asylum claimant is returned from the UK (or another EU state) to the first EU country in which that person claimed asylum within the EU or was first identified and fingerprinted.

The Court reaches its conclusion partly on the basis of the precise wording of the regulation and partly on the need to take into account the best interests of a child.

This is a further blow to the current Dublin II mechanism, following on from the suspension of all returns to Greece because of almost total collapse of the Greek asylum system. The effect of this new judgment in MA and Others is that any child who has entered the UK through another EU state cannot now be removed to that EU state.

Round up

Round up

Free Movement — 
Round up

Round up

There are some detailed blog posts to come on some of the more important things that happened in the last fortnight, but for those who missed their beloved Free Movement updates here is a brief round up of developments I’ve spotted looking through my emails on my return from holiday. In no particular order…

The Home Office’s self inflicted wounds caused by bad legislative drafting and rushed legislation continued with a rare example of the Court of Appeal upholding a major legal ruling by the Upper Tribunal, that of Ahmadi on section 47. As previously discussed this potentially causes huge problems down the line for the Home Office as setting later lawful removal directions will often trigger a further right of appeal. The more normal pattern was resumed with a grant of permission to appeal to the Court of Appeal to the Claimants in the never ending Zimbabwe Country Guidance litigation.

The universal policy of granting separated children three years Discretionary Leave without regard to their welfare was held by the High Court to be unlawful.

A new Immigration Act was announced in the Queens Speech. Details are sketchy but look ominous. The Government briefing says the main elements of the Bill will be:

Access to services

  • The Bill would enable tough action against businesses that use illegal labour, including more substantial fines.
  • The Bill would regulate migrant access to the NHS, ensuring that temporary migrants make a contribution 
  • The Bill would require private landlords to check the immigration status of their tenants
  • The Bill would prevent illegal immigrants from obtaining UK driving licences

Enforcement and appeals

  • The Bill would ensure that only those cases that raise the most important immigration issues would have a right of appeal.
  • The Bill would close a number of gaps in enforcement officer’s powers.

Article 8

  • The Bill would contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules.
  • The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.

There’s a good Adam Wagner article in the New Statesman on the rebalancing of Article 8.

Corum Children’s Legal Centre issued a new report called Happy Birthday? Disputing the age of children in the immigration system. The report includes some simple, practical and implementable changes to the existing age assessment process, which is currently harming rather than protecting too many young people.

Judgment in Alarape and Tijani C-529/11 was finally given by the Court of Justice of the European Union on the issue of whether third country nationals who are family members of a Union citizen resident under Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, build up an entitlement to permanent residence. Deciphering CJEU judgments is always a little trying but it doesn’t look like a helpful judgment at first glance.

The latest judgment in the Zambrano saga was also handed down by the Court of Justice, the case of Ymeraga C-87/12. It is a significant case in a legal sense but offers little by way of practical guidance on the meaning of “the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen”.

The Identity and Passport Service is to be renamed Her Majesty’s Passport Office, a title that emphasises the Government’s recent eagerness to assert prerogative powers over the issuing of passports. Perhaps because they seem to already have lost such prerogative powers over immigration control in the Supreme Court judgment in Alvi?

In the case of Khatoon v The Entry Clearance Officer Islamabad [2013] EWHC 972 (Admin) paragraph 27 of the Immigration Rules was held by the High Court not to require the Secretary of State (or an Entry Clearance Officer) to treat a person as if they were a child when in fact they were not for human rights and child best interests purposes.

There were a couple of interesting immigration articles on Open Democracy, one by Dr Frank Arnold on the utterly unfounded allegation of self scarring in Tamil torture cases and another on observations of bail hearings.

More soon…

1366368809.jpg

Immigration detention dehumanises not only the detainee but also every person who deals with it. It is a poison that infects us all. The professionals who deal with detainees and their families develop coping mechanisms. We convince ourselves that detention is necessary, that there is no alternative, that it is an inevitable part of the process, that the individuals affected deserve it, that they will get over it, that they are not like us and don’t feel family separation and deprivation of liberty in the same way that we would, that the kids are adaptable little things and won’t really notice. Most of all, we learn to dissociate. The effect of unknowably long immigration detention at the whim of unknown bureaucrats is simply too awful to contemplate for more than a short time.

Children are often the unrecognised victims of immigration detention. The detention of a parent has an absolutely devastating effect on the children concerned. Perhaps to protect themselves from thinking about the effect of their actions, Home Office decision makers and immigration judges hearing bail applications will routinely turn a blind eye to the impact of separation on the detainee and also the detainee’s children, even in the cases where such evidence is available.

A new report by Bail for Immigration Detainees (BID) explodes the myth. BID reveal systematic disregard of child safeguarding duties by the now defunct UK Border Agency. The most powerful words in the report are those of the individuals affected by detention. This power is impossible to convey in a press release or even the executive summary. The best way to understand the impact of detention is to draw on some of the case studies, quotes and images in the report.

Case study: Beth and Daniel

Beth’s grandfather, who was caring for her and her disabled brother Daniel during their mother’s detention, became seriously ill and was admitted to hospital three times. Beth had to stop attending school to care for her brother and grandfather and missed her GCSE exams. She also had to deal with proceedings which were started to evict the family due to rent arrears.

Beth found it extremely difficult to look after her seven year old brother, was has very limited motor control and severe behavioural problems. During their mother, Christine’s, detention, he was made subject to a child protection plan, deemed to be at risk of emotional and physical harm and referred to Child and Adult Mental Health Services. A Children’s Services assessment found that:

‘Daniel has found it very difficult being separated from his mother, he is keen for her to return home and often states that she is “coming home today” when she is not and becomes upset when he realises this is not the case.

[A] concerned neighbour rang to report that Daniel was playing alone in the road at 8pm, he was seen to fall and lay in the road, which is a bus route… he walks into people’s houses and has poor awareness of danger and his own safety.’

Two months after his mother entered detention Children’s Services received a report that Daniel had been hit by a car.

Despite receiving reports about the welfare of these children, the Border Agency detained their mother for 160 days before she was released on bail by the Tribunal. She subsequently successfully appealed the Border Agency’s decision to deport her.

All that, and the mother was then released from detention on bail and won her appeal. This is all too common. Even where it is clear from the outset that the detention will be prolonged or that removal will ultimately be impossible, immigration detention is effectively used as a punishment that the Home Office thinks will magically deter future illegal immigration.

Some quotes from carers about the effect on the children:

‘Their dad told me that the eldest used to cry, regular at night before she go to bed, asking “when is mummy coming home?” There were a lot of questions that they were asking that I couldn’t answer. They would say “Oh so you don’t love us, why you staying away from us so long?”’

‘My daughter wakes up crying that she’s dreamt her daddy’s at home, and daddy takes her to school. And then she wakes up and daddy’s not there. I want to cry now just talking about it.’

‘She didn’t want to eat; you had to force her to eat. She just start crying “mummy, mummy”… you know, the constant crying. Whenever she hear the door open she would go to the door, knocking on the door saying “mummy.”’

‘At times she would sit by herself and break down and cry. When you asked her what is the matter, she say “when is my mum coming I want to go home with her.”’

And finally a quote from one of the parents themselves:

‘I never knew people could take your kids away out your life, just like that. They don’t know the pain that you feel in your stomach, you feel it in your guts. Being with my kids now is like I’m alive again.’

Father and son

Father and sonLike me, readers may have detected some uncertainty from the First-tier and Upper Tribunals about how best to determine claims of former UASCs from Afghanistan in light of EU and others (Afghanistan).   In EU the Court of Appeal, Sir Stanley Burnton giving the only substantive judgement, determined the individual claimants’ appeals from KA (Afghanistan) and in doing so closed off avenues of redress which had briefly seemed possible following KA.

My post on KA had been optimistically entitled ‘A significant step forward for young asylum seekers’ and in many ways this was true.   During the few months between KA and EU, those of us representing Afghanistan nationals around the age of 18 delighted in witnessing Tribunals (with a few shocking exceptions) directing Home Office Presenting Officers to explain what the Secretary of State had actually done to comply with her statutory obligations to trace minors’ families.    This wasn’t merely schadenfreude on our part as we watched HOPOs squirm in the Tribunal’s grubby blue seats, rather we felt vindicated by being possessed of solid legal authority with which we could legitimately demand answers.

Those answers when they came were invariably that the Secretary of State had done nothing, absolutely nothing, to assist UASCs to trace their families.  Consequently, applying KA, it was possible to argue that the particular UASC had lost the chance of putting before the Tribunal the ‘best evidence’ of being unable to trace his or her family.    How, it was rightly asked, could a child be expected to find his or her family when even the government was unable to?      It happened that claims were being remitted back to the Secretary of State for consideration of whether the Rashidcorrective and protective principle’ should be applied.   Perfectly proper, one would think, particularly given the subject matter.

In EU, Sir Stanley effectively shuts the door on Rashid being used unless it is shown that on the particular facts there is causative link between the Secretary of State’s breach of duty and the claimant’s claim to protection.  He considers the ‘protective principle’ to be a ‘misnomer’ as ‘the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection’ and none of the appellants in EU had been found to be in need of protection by the Tribunals.  You can already probably see where this one was going…  Yes, Sir Stanley dismissed the appeals of all 6 appellants:

  • AK had been unable to provide details of the whereabouts of his family when he had completed his Statement of Evidence Form.  The Tribunal had found that he had been provided with the details of organisations which could assist him in tracing his family but he had not been interested in doing so.   Sir Stanley stated that ‘it was indeed difficult to see what could have been done by the Secretary of State if she had endeavoured to trace his family on the basis of the information he had given.
  • AR had returned to Afghanistan by the time of the appeal before the Court of Appeal.
  • EU’s entire claim had been found to have been fabricated (including his attempts at tracing) and he could not establish the necessary causative link between the Secretary of State’s failure and his claim to remain in the country.
  • SU’s evidence of being unable to trace his family had not been found credible by the Tribunals.   The arguments that Rashid should be applied on the basis that, had the Secretary of State endeavoured to trace his family he may have been able to show that his evidence on this issue was credible, was rejected as they ‘…failed to take into account the finding that the claim to have lost contact was incredible’.
  • In FU’s case, the Tribunal again did not believe that he was unable to trace his family in Kabul and the Secretary of State’s failure to trace was immaterial.
  • QA had refused to undertake tracing enquiries himself as he feared that Western organisations’ involvement on the ground in Afghanistan may place his mother at risk. Given his refusal it was ‘impossible to see that the Secretary of State’s duty to endeavour to trace is relevant to his case’.

EU, in its conclusions and indeed its tone, is a very negative judgement.  However, having said that, I think that it may be relatively easy to persuade Tribunals that it is, in fact, very narrow in its scope.  Three points jump to mind:

(1)  It is only authority on the application of Rashid and nothing else.

(2)  The appellants in EU had already had their appeals determined and had all been found to be not credible. Whereas Tribunals confronted with post-EU UASCs, who are now adults, arguing that Rashid should apply to them will have yet in many cases to go through this fact-finding exercise.  Put in another way, for those seeking to establish the so- called ‘causative link’ between the Secretary of State’s failure (not difficult in most cases) and their need for protection, the protection issue is still a live one and the particular evidence of the whereabouts of family members willing and able to provide protection for them has to be determined alongside all other issues.   

(3)  The Secretary of State’s legal duty to trace remains untouched by the judgement.

In respect of (2), I admit to always feeling very uncomfortable with the way that former UASCs are put to proof on any historic and current failure to have contact with family members.  Particularly, when they are unlikely to have been responsible for the absence of evidence on this issue.   It seems to me that the current approach to tracing all too often risks displacing the focus from what should be the State’s responsibilities towards a child, residing in a foreign country and very likely cared for by foster carers, and wrapping this up in the usual scepticism expressed towards asylum seekers.  If an equivalent situation arose for a child in care (British or otherwise), I am not sure that the Court and Tribunals would be so quick to absolve the responsible local authority in the manner than the Secretary of State seems to have been in so many of these cases.    Another reason for any purported lack of evidence of attempts to trace family members stretching back from the time of arrival in the United Kingdom could well be that the particular UASC believed that establishing contact was peripheral or even wholly irrelevant to the reasons why they had claimed asylum many years earlier.   It probably was completely irrelevant.   

Saying all of this and despite the Secretary of State’s duties, evidence of attempts to trace from UASCs themselves is still something that the Tribunals will expect to see.  

There are some other points about the judgements which are comment worthy.  On a positive note, the judgement reaffirms and perhaps extends that which was said in KA about there being no ‘bright line’ once the age of 18 is reached as the question is one of risk on account of ‘apparent or assumed age’ and not the actual date of birth.   At paragraph 9, Sir Stanley makes the valid point that given the vast majority of UASCs have been age-assessed and given that a date of birth is as an administrative formality, ‘the origin of the precise date of birth is a further reason why the achievement of adulthood cannot of itself necessarily change the assessment of risk on return’.  

On the downside, I am dreading the time when a Home Office Presenting Officer seeks to rely upon the objectionable and quite unnecessary recital of a submission made by the Secretary of State’s counsel, Mr Jonathan Hall, at paragraph 10 of the judgement concerning the parents of UASCs being unlikely to cooperate with any tracing agent of the Secretary of State less they would ‘waste their investment’ on their children.   There are so many things I could say in response to this but it wouldn’t be pretty.

Sole responsibility
Sole responsibility

Sole responsibility

The ‘sole responsibility’ and ‘serious and compelling family or other considerations which make exclusion of the child undesirable’ tests for the admission of children to join parents in the UK have featured in the Immigration Rules for time immemorial. Both legal context and best practice have changed considerably in recent years, though. With the lifting of the UK’s immigration reservation to the UN Convention on the Rights of the Child, the passage of section 55 of the Borders, Citizenship and Immigration Act 2009 and cases like EM (Lebanon) and ZH (Tanzania) we should all now be following a much more child-centred approach in immigration law. That means putting the best interests of the child front and centre but also ensuring that the voice of the child is heard.

Like the rules themselves, the truth is that not a lot has changed in the way some of us argue and evidence these child entry clearance cases where one parent is resident in the UK but the other is not. Too often, immigration cases for or about children are still devoid of real evidence from or concerning the child. What does the child think of moving country, leaving everything he or she knows behind him or her and joining a hitherto absent parent? Is it exciting and will it fill an emotional hole in their life to be with the parent, or are they scared at the prospect of the unknown? Or both? Quite often, we simply don’t know. Or should we simply accept that parents know what is best for the children and should be permitted to make decisions about their country of residence?

The ‘sole responsibility’ test in particular is a distraction from the real relevant considerations and the right approach. It diverts Entry Clearance Officers, immigration lawyers and judges from looking at the situation of the child and causes focus on the situation of the parent. It is almost as if being reunited with one’s child is a reward for taking a long distance interest in their upbringing. The right approach is surely to examine the case from the child’s perspective — it is the child’s appeal after all — and consider what is best for that child.

In Mundeba (s.55 and para 297(i)(f)) Democratic Republic of Congo [2013] UKUT 88 (IAC) the Upper Tribunal deconstructs the language of para 297(i)(f) and adopts a more inclusive approach to the ‘exclusion undesirable’ test than has traditionally been the case, reading into it at least some of the more child-centred modern considerations one would expect in this day and age. Still, though, the test seems to be left requiring something more than best interests:

In our view, ‘serious’ means that there needs to be more than the parties simply desiring a state of affairs to obtain. ‘Compelling’ in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. ‘Serious’ read with ‘compelling’ together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind.  Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be.

The tribunal goes on to hold:

The exercise of the duty by the Entry Clearance Officer to assess the application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require…

As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC); [2012] Imm AR 939.

Sole responsibility as interpreted as a test of a parent’s level of engagement with the major decisions in a child’s life is a hangover from a bygone age. The astute lawyer can draw on other arguments to advance the case in an appropriate, modem and child-centred way. We should all take careful note of Mundebe, which at least provides more of a base for arguing the best interests of children in entry clearance cases.

In Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, when an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, the Member State responsible for determining the application for asylum pursuant to the second paragraph of Article 6 of the Regulation must, in principle, having regard to the minor’s best interests, and unless those interests require otherwise, be the Member State where the most recent application has been lodged.

Opinion of Advocate General Cruz Villalon on the effect of best interests of a child in determining responsibility for assessing asylum under Dublin II in the case of MA & Ors v Secretary of State for the Home Department [2013] EUECJ C-648/11 (21 February 2013)

Best interests of child and Dublin II