The harsh reality of immigration law enforcement is dramatically exposed by the facts of the case of R (on the application of Shaw & Anor) v Secretary of State for the Home Department  EWHC 42 (Admin). In this case a Jamaican woman and her five year old son who had been resident in the UK since 2002 and since birth in 2005 respectively were detained at the airport without warning when they attended there as requested. They were then bundled onto the first flight to Jamaica.
Archives For Removals
Many migrants and their families get caught in a situation where they apply to the Home Office for permission to stay, are rejected but then are unable to appeal the decision to the immigration tribunal. This has long been a problem (‘Refusal with no right of appeal revisited‘) but is becoming even more acute given the terms of Appendix FM and the huge number of arbitrary refusals it is generating.
Although it may well seem counterintuitive, a good outcome can be a formal removal decision from the Home Office. Continue Reading…
The horrific news of sexual abuse by private security contractors at Yarlswood, the female-only immigration detention centre near Bedford, is awful and shocking. It is very far from the first time that problems or outright abuse at Yarlswood has been reported, though. Various examples from 2009 onwards can be found here, here, here, here, here. And this comes just days after Mark Harper expressed his sinister reasons for detaining pregnant women at Yarlswood.
As I’ve said before:
The prolonged and in some cases indefinite detention of immigrants is a stain on this society. Sometimes the detainees have committed crimes. Their immigration detention often exceeds their criminal sentence. While The Daily Mail might celebrate this, any right thinking person should be horrified. Deprivation of liberty is the most serious sanction we possess. To use it for months and months on end on people for whom there is little or no prospect of removal demeans all concerned.
On this blog I am generally preaching to the converted, although I hope also to provide tools for advocacy. Bearing in mind the marked fall in immigration removals shown last week, I thought it was worth another stab at one of these infographics I’ve lately become so fond of. Continue Reading…
The London-based research group Corporate Watch has just published a 20-page briefing examining the lawfulness the UK’s mass deportation charter flights. Part of a forthcoming report by Corporate Watch and the campaign group Stop Deportations, it aims to provide campaigners and legal practitioners with some arguments and tools with which to challenge the legality of these flights. This post provides a short summary of the main arguments and findings.
The main focus of the briefing is Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits the “collective expulsion of aliens.”
Sir John Thomas has given a further warning to solicitors and barristers acting in urgent injunction applications. The case is R (on the application of Rehman) v Secretary of State for the Home Department  EWHC 1351 (Admin). No names are named this time, at least not so far:
In the present case the explanation given for everything being done at the last moment is one where those concerned, following counsel’s clear and cogent advice, did try to satisfy the obligations of disclosure. It is deeply regrettable that because of the way in which that firm was organised and the commitments of counsel that the application was made late. We take this to be one of those rare occasions where something has gone wrong and we propose to take no further action. The other two matters we will deal with as soon as convenient.
The warning in this case is that where an application is made during court office hours, it will always be dealt with by the daytime duty judge. A further application to the out of hours judge should not be made. In this case the application was made at 4.30pm on the date of departure of a charter flight. The Claimant, solicitors and counsel must simply wait to hear:
We have been told by counsel that he did not know that this court always deals with applications submitted within court hours through the judge who is dealing with them in court hours. We wish to correct that misapprehension, because if it is not within the knowledge of counsel as experienced as he, it must be corrected. If the solicitors have not heard, they must wait. The court cannot be expected, if an application is filed as late as it was in this case, to respond immediately, but the solicitors must wait for that response before applying to the out-of-hours judge.
I confess this was news to me as well.
Given the flood of applications that accompanies many charter flights, it seems quite possible that a daytime duty judge will simply not be able to deal with every application before take off. This apparently absolute bar on approaching the out of hours judge could conceivably lead to cases simply not being dealt with in time.
As most of you know, Renaissance Chambers has developed expertise in conducting Tamil asylum claims. The issues involved in these cases have been previously covered on Free Movement here and these include in particular Chambers’ and the NGOs’ efforts to combat recent charter flights set by the UK Border Agency to remove en masse failed Tamil asylum seekers to Colombo, Sri Lanka.
Last week, Chambers had the pleasure of co-hosting with Tamils Against Genocide (TAG) and the LSE a screening of the forthcoming documentary ‘No Fire Zone – The Killing Fields of Sri Lanka’. This follows 2 previous and shorter documentaries broadcast by Channel 4 in 2011 and 2012 and all three films have been directed by Callum McCrae. The screening was preceded by a panel discussion consisting of TAG Director Janani Jananayagam, one of our colleagues Shivani Jegarajah and the film’s Director Callum McCrae, chaired by Dr Devika Hovell, Lecturer in Public International Law at the LSE.
The film which lasts approximately 90 min documents the final harrowing months of the conflict, which spanned 26 years in Sri Lanka. It is a meticulous and chilling exposé of war crimes and crimes against humanity through personal stories of displaced persons and victims as well as video footage.
Callum McCrae reiterated in the panel discussion, as is also done in the film, that all of the footage has been painstakingly verified by independent forensic experts. This body of evidence is in complete contrast with the Sri Lankan government’s bare denials and statements that it is all lies. The No Fire Zone team offers not just a definitive film of record, but also a film to jolt the international community and audience to call for action. Without truth, there can be no justice in Sri Lanka and without justice there can be no peace.
Janani Jananayagam of TAG very helpfully set out TAG’s approach as an advocacy and lobbying organisation to get these crimes recognised and the perpetrators prosecuted. In the Q & A session that followed, a discussion developed concerning the rationale behind pursuing an International Criminal Court (ICC) prosecution in light of Sri Lanka not being a signatory. In the knowledge that countries like Russia and China would almost certainly veto any move in the Security Council of the United Nations to make a referral to the ICC (the only other way to ‘engage’ the ICC if a country is not a signatory), Janani was asked whether it is worth TAG pursuing this. Janani was firm in her and TAG’s belief that any such international exposure can go a long way towards TAG’s objectives. There is certainly something to be said about letting Russia and China take the blame for vetoing rather than sacrificing the victims’ rights to seek truth and justice at the highest level.
Shivani Jegarajah shared with the audience her experience of being one of the leading counsels in the pending Upper Tribunal Country Guidance case on the risk on return for Tamils and in particular the impressive expert evidence that was called. Shivani has acquired her expertise in the area over a period of 20 years or so and it is expected that the Upper Tribunal will promulgate its determination in the next 2 weeks.
Over the next year or so, the No Fire Zone Team will be organising a world-wide tour of screenings, for which funding is required. The film was shown in the Palais des Nations in Geneva on 28.02.2013 and with Sri Lanka due to host the Commonwealth’s biennial heads of government meeting later this year in November, the pressure is on. If you would like to support this cause by making a donation, please do so here and if you would like to spread the word, click here for suggestions on how to do so.
The Court of Appeal in the UK has very recently granted stays preventing the removal of asylum-seekers to Cyprus under Dublin II. The proceedings have been stayed pending the appeal against the judgment in EM (Eritrea) & Ors v SSHD  EWCA Civ 1336.
The cases are:
- MD (Guinea) v SSHD C4/2012/3166 (Order granted on the 7th March 2013)
- ZJ (Iran) v SSHD C4/2012/2988 (Order dated the 8th March 2013)
- FJ (Iran) v SSHD C4/2012/3361 (Order dated the 14th March 2013)
EM concerns Dublin returns to Italy. In that case, the appellants challenged their removal to Italy on the basis that the conditions there for asylum-seekers and refugees breached Article 3 of the European Convention on Human Rights (prohibition of torture).
The Court of Appeal dismissed the appellants’ challenge because they had not shown there were systemic deficiencies in the conditions for asylum-seekers and refugees in Italy. It was held that:
62. [T]he sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter’s asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.
The judgment in EM impacts upon Dublin cases generally. This is because it confirmed that the test in challenging removal to a Dublin State is to show systemic deficiencies in the general conditions, not ‘simply’ a real risk of a breach of ECHR rights.
Further, individual risk is insufficient to challenge removal.
The Court considered that this was the test set out by the Court of Justice of the European Union (“CJEU”) in NS (European Union law)  EUECJ C-411/10.
The Court proceeded to grant a stay on the removal of the appellants in that case pending their applications for permission to appeal to the Supreme Court.
In making the Order, the Court seemed to doubt the correctness of its own judgment by stating that:
[I]t should be for the Supreme Court to decide whether to grant permission to appeal, but this Court recognises it as problematical that NS and MSS may pull in different directions and that, whilst NS binds the Court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS.
NS and MSS v Belgium and Greece – 30696/09  ECHR 108 both concerned the removal of asylum-seekers to Greece under Dublin II.
In MSS the European Court of Human Rights found that the conditions for asylum-seekers in Greece breached Article 3 ECHR. In turn, Belgium had violated Article 3 by returning an asylum-seeker to Greece under Dublin II. The Court held:
[T]he existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention” (§35).
NS was a referral to the CJEU by the Court of Appeal on points of law regarding the application of the Dublin II Regulation. The Court endorsed the approach in MSS and held:
[I]f there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision” (§86).
Permission to appeal was granted by the Supreme Court in EM on the 6th March 2013.
The Court of Appeal’s recent stays in the Cyprus cases shows that EM has implications for Dublin cases generally and not just for returns to Italy.
In the Cyprus cases, an Article 3 ECHR challenge is made. Removal is also challenged under Article 5 ECHR (right to liberty and security) and Article 13 (right to an effective remedy.
Clarification of the test by the Supreme Court would shed light on the test for other ECHR rights.
A further issue is whether the systemic deficiencies test (if correct) applies where there is an individual risk to the asylum-seeker, for instance a suicide risk.
The High Court has previously decided that there is no risk of refoulement and/or breach of Article 3 ECHR rights for asylum-seekers in Cyprus, in . However the applicants are relying on fresh evidence, which post-dates that judgment.
We are here dealing with a fast developing area of law, which is in part a response to the changing fortunes of the European Union.
This was the observation of Jackson LJ in AB (9th January 2013), which concerned Dublin returns to Italy. The Court of Appeal in that case has granted permission to appeal against an order of the High Court refusing to grant stays pending EM.
In the Cyprus cases, the SSHD has applied to the Court of Appeal for the Orders to be discharged.
Claire Physsas is Counsel for the Applicants, instructed by Duncan Lewis Solicitors.
At 2pm today a group of injunction applications for Tamils facing removal to Sri Lanka by charter flight on 28 February 2013 were heard before Mr Justice Wilkie and Upper Tribunal Judge Gleeson. A suspension on the removal of all Tamil failed asylum seekers was ordered (copy here).
The cases concerned the sole issue of whether removal should be suspended for some or all of those on the charter flight at a time when the courts were considering detailed evidence on the safety of returned failed asylum seekers in an upcoming Country Guidance case. The court heard detailed submissions from Renaissance Chambers barristers Charlotte Bayati and Nishan Paramjorthy and from Philip Nathan of Landmark Chambers.
The issue of safety on return to Sri Lanka for Tamil failed asylum seekers has been widely covered in the press in recent days and weeks. Human Rights Watch only yesterday issued a new report on use of rape and other forms of sexual violence against Tamils suspected of links to the LTTE. Channel 4 has been covering the issue in detail and The Guardian and The Independent have also carried stories.
For non Tamil failed asylum seekers an application for suspension of removal on an individual basis to the Administrative Court setting out cogent grounds as to why the Country Guidance issues are relevant to them. The Secretary of State, represented by Jonathan Hall, sought permission to appeal the judgment to the Court of Appeal. Permission was granted but the suspension remains in force.
Thanks go to Arun Garanathan, Alison Pickup, Alasdair McKenzie, Rudolf Spurling, Sara Anzani and Iain Palmer for their invaluable contributions to the case.
In asylum cases it is still referred to as The Legacy, as if it were a second rate Spagetti Western. In immigration cases it has the more prosaic title of the ‘migration refusal pool’. The UK Border Agency’s inspectorate has today [update: link to report here] unveiled yet more cases abandoned by immigration officials, this time of complex spouse and marriage cases dating back as far as 2003. The files were sitting unopened in boxes until the inspectors asked what was in them. How has this well publicised backlog arisen?
Well, even if you ASK the UK Border Agency to remove you they STILL won’t do it. The relevant instruction to immigration officials for a lot of these backlog cases reads as follows:
You must not make a removal decision at the same time as refusing leave to remain in these cases, other than in asylum cases. The applicant is expected to leave the UK voluntarily when the application is refused.
The instruction goes on to tell officials that it is only in exceptional cases that a request to be removed should lead to a removal decision. The criteria for making one of these rare removal decisions is said to be:
- the refused application for leave to remain included a dependant child under 18 who has been resident in the UK for three years or more
- the applicant has a dependant child under the age of 18 who is a British citizen
- the applicant is being supported by the UK Border Agency or has provided evidence of being supported by a local authority (under section 21 of the National Assistance Act 1948 or section 17 of the Children Act 1989), or
- there are other exceptional and compelling reasons to make a removal decision at this time.
For immigration lawyers trying to help clients understand the topsy turvy world of the UK immigration ‘control’, this perhaps explains why some applications for judicial review intended to secure a removal decision do so and others do not. It is a topic that the blog has covered several times previously and which has repeatedly troubled the higher courts. The reluctance of the UK Border Agency is perhaps partially explicable by the fact that a removal decision would trigger a right of appeal. If the appeal was unfounded or raised repeat points it can be certified, though, and avoiding conferring an ability to challenge a decision through the tribunal system hardly seems like a sound reason for failing to take action against those the Agency purportedly would rather were somehow, miraculously, gone from these shores.
It would seem that the government quietly abandoned attempts to enforce immigration control some time ago. Instead a private company, Capita, using nothing more than the faulty data held on UK Border Agency systems, have now been contracted as bounty hunters to do what immigration officials could or would not do.
Thanks to ILPA (again) for highlighting the policy.
The President of the Queens Bench Division, Sir John Thomas, has issued a dire warning to solicitors applying for last minute judicial reviews and injunctions in immigration cases. The comments come in the case of R (on the application of Hamid) v Secretary of State for the Home Department  EWHC 3070 (Admin), which has still inexplicably not made its way to BAILII.
Sir John refers to the revised Form N463 for urgent applications and also later flags up that a new form is shortly to be introduced for out of hours applications:
The form was revised because the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration. Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight. In many of these applications the person concerned has known for some time, at least a matter of days, of his removal. Many of these cases are totally without merit. The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal.
The case of R (Madan) v Secretary of State for the Home Department  EWCA Civ 770 is cited for the guidance there given by Buxton LJ reminding those applying for removal injunctions of the need for a prompt application at the earliest possible time, the need for full disclosure of previous applications and an explanation of how the current application differs from those and the need for full disclosure of any adverse matters or relevant authorities in an ex parte context. The possibility is raised of professional misconduct occurring “if an application is made with the view to postponing the implementation of a previous decision where there are no proper grounds for so doing.”
In this particular case the solicitor behind the offending application is not named. The court had ordered personal attendance by the solicitor with conduct of the case and the solicitor apologised to the court, thus apparently avoiding naming and shaming. Sir John thunders on, though:
7. However, we will for the future do the following. If any firm fails to provide the information required on the form and in particular explain the reasons for urgency, the time at which the need for immediate consideration was first appreciated and the efforts made to notify the defendant, the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned. Non-compliance cannot be allowed to continue.
8. That will not be the only consequence of failing to complete the requirements set out in this form. First, one consequence may be that, if the form is not completed, the judge may simply refuse to consider the application. Second, if reasons are not properly set out or do not explain why there has been delay or the reasons are otherwise inadequate, the court may simply refuse to consider the application for that reason and that reason alone.
9. These remarks apply equally to the form soon to be introduced for out of hours applications and the form for renewals when an application has been refused on the papers.
10. These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.
I doubt I am alone as counsel in saying that making out of hours telephone applications to a duty judge is one of my least favourite activities. Given the choice, I’d rather chew stones. This judgment will hopefully reduce the incidence of such applications, which should be made as early as possible and before the out of hours service becomes necessary. Where it looks like an injunction may be needed (in charter flight cases for example) the way forward to avoid slippage is to give the UK Border Agency a set time by which they must respond, failing which an injunction application will follow.