UK Immigration Detention: Prolonged, Inhumane, Unjustified and Undignified

On 11 September 2015, the Telegraph reported that on 10 September 2015 a House of Commons debate on immigration detention saw MPs from the four main parties in agreement – calling for better conditions in removal centres and time limits on custody.

It reported that, “ Dozens of MPs have called on the Government to introduce a time limit when detaining immigrants and start treating them more humanely………………….The MPs present in the debate unanimously agreed on this, but Immigration Minister James Brokenshire refused to state whether the Home Office would implement a limit. He said the UK only detains immigrants as a last resort – contradicting evidence given by MPs showing otherwise, as well as the fact that 32,053 people were detained this year – an increase of 10 per cent. It is a far cry compared to other European countries. In 2013, the UK detained 30,418 people while Germany detained 4,309 people, Belgium detained 6,285 and Sweden detained 2,893. During that time period, Germany received four times as many asylum applications as the UK in that time. Labour MP Andrew Smith pointed out these statistics, saying: “That shows that there are workable alternatives to detention. But Brokenshire said: “Our published policy makes clear that there is a presumption in favour of liberty and that detention should be used only as a last resort, but there will be some cases in which longer periods of detention may be appropriate.” He agreed that “that more use should be made of alternatives to detention in the UK” adding: “I am considering carefully what further steps may be taken in that regard.” But he refused to agree to a time limit, saying he would only comment after an on going Government review into detention has been finalised. ………” http://www.telegraph.co.uk/women/womens-politics/11858071/Immigrants-UK-needs-to-drastically-change-the-way-it-detains-them.html

The transcript, Commons Hansard: MPs debate immigration detention, Thursday 10 September 2015 reads:

“That this House supports the recommendations of the report of the Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, The Use of Immigration Detention in the United Kingdom; has considered the case for reform of immigration detention; and calls on the Government to respond positively to those recommendations……

The problems have been well documented, but Parliament has never taken a systematic and comprehensive look at how we use detention, so we thought there was a need for that wider piece of work……………………….

In her forward to the report, the former Member for Brent Central describes a moment in the Committee Room during that session when everybody gasped. We were talking via the phone link with a young man from a disputed territory on the Cameroon-Nigeria border. He told us he had been trafficked to Hungary as a 16-year-old, where he was beaten, raped and tortured. He had managed to escape and eventually made his way to Heathrow using a false passport. It was discovered on his arrival, and he was detained. We then asked him how long he had been detained, and his answer was three years—three years in what is supposed to be an immigration removal centre. His detention conflicts with the stated aims of the Home Office: that those who have been trafficked should not be detained; that those who have been tortured should not be detained; and that detention should be for the shortest possible period. But he is just one of the thousands of people this country detains each year.

As the use of detention has expanded rapidly over the last two decades, so has the size of the estate. In 1993, there were just 250 detention places; by 2009, that had risen to 2,665; at the beginning of this year, it was 3,915. The number of people entering detention in the year to June 2015 was just over 32,000—up 10% on the previous year. By contrast, in 2013, Sweden, despite receiving three times the number of asylum applications we do, detained just 2,893, and Germany detained just over 4,300. The Home Office policy states clearly that detention must be used sparingly…………

The UK is alone in the EU in not having a maximum time limit on detention. That lack of a time limit was a constant theme in the evidence we received during our inquiry and one on which we received some striking testimony. Time and again we were told that detention was worse than prison, because in prison people know when they will get out. As one former detainee said:

“The uncertainty is hard to bear. Your life is in limbo. No one tells you anything about how long you will stay or if you are going to get deported.”

Those detained are usually the undocumented subject to removal, those whose asylum claims are being processed, failed asylum claimants, individuals subject to deportation in particular foreign national criminals who have completed their sentence. A detainee may have been a victim of torture or historic trafficking. Modern slavery encompasses human trafficking, slavery, servitude and forced or compulsory labour and among those detained will be some who have been victims. The Home Office may fail to identify if a detainee is a potential victim of modern slavery. Therefore by virtue of prolonged detention, detainees may be caught up in a situation of feeling that they are being “ punished”  further by what may seem to some as almost indefinite detention.

Prolonged detention of immigrants in the UK has been criticized primarily on the basis that it worsens immigrant’s mental health, is unnecessary and that vulnerable people are being detained. Prolonged detention of the vulnerable clearly promotes inhumane treatment. In claims of unlawful detention against the Secretary of State, the repeated mantra by the Home Office seems mostly to be that there are reasonable prospects of removal within a reasonable time, despite sometimes not having an evidential basis for that conclusion.

RELEVANT  LAW AND POLICY

The principal statutory provisions authorizing the detention of those who the Secretary of State wishes to remove/deport from the United Kingdom are contained in the Immigration Act 1971.

Paragraph 2(3) of Schedule 3 to the 1971 Act (and section 36 of the UK Borders Act 2007 (automatic deportation) empowers the detention of a person who is the subject of a deportation order pending his or her removal:

“Detention or control pending deportation

2(1)Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court , he shall, unless the court by which the recommendation is made otherwise directs or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.-E+W+S+N.I.

(1A)Where—

(a)a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and

(b)he appeals against his conviction or against that recommendation,

the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.

(2)Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3)Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).

(4)In relation to detention under sub-paragraph (2) or (3) above, paragraphs 17 ,18 and 25A to 25E of Schedule 2 to this Act shall apply as they apply in relation to detention under paragraph 16 of that Schedule F9; and for that purpose the reference in paragraph 17(1) to a person liable to detention includes a reference to a person who would be liable to detention upon receipt of a notice which is ready to be given to him.

(4A)Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.

(5)A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence , as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State.

(6)The persons to whom sub-paragraph (5) above applies are—

(a)a person liable to be detained under sub-paragraph (1) above, while by virtue of a direction of the Secretary of State he is not so detained; and

(b)a person liable to be detained under sub-paragraph (2) or (3) above, while he is not so detained”.

 Paragraph 16 of Schedule 2 of the 1971 Act ( as applied by section 10(7) of the Immigration and Asylum Act 1999) empowers the Secretary of State to detain inter alia those in respect of whom removal directions may be given:

Detention of persons liable to examination or removal

16(1)A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.

(1A)A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending—

(a)completion of his examination under that paragraph; and

(b)a decision on whether to cancel his leave to enter.

(1B)A person who has been required to submit to further examination under paragraph 3(1A) may be detained under the authority of an immigration officer, for a period not exceeding 12 hours, pending the completion of the examination.

(2)If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—

(a)a decision whether or not to give such directions;

(b)his removal in pursuance of such directions.

(3)A person on board a ship or aircraft may, under the authority of an immigration officer, be removed from the ship or aircraft for detention under this paragraph; but if an immigration officer so requires the captain of a ship or aircraft shall prevent from disembarking in the United Kingdom any person who has arrived in the United Kingdom in the ship or aircraft and been refused leave to enter, and the captain may for that purpose detain him in custody on board the ship or aircraft.

(4)The captain of a ship or aircraft, if so required by an immigration officer, shall prevent from disembarking in the United Kingdom or before the directions for his removal have been fulfilled any person placed on board the ship or aircraft under paragraph 11 or 15 above, and the captain may for that purpose detain him in custody on board the ship or aircraft.

(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”

The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provides:

35Deportation or removal: cooperation

This sectionnoteType=Explanatory Notes has no associated

(1)The Secretary of State may require a person to take specified action if the Secretary of State thinks that—

(a)the action will or may enable a travel document to be obtained by or for the person, and

(b)possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom.

(2)In particular, the Secretary of State may require a person to—

(a)provide information or documents to the Secretary of State or to any other person;

(b)obtain information or documents;

(c)provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye);

(d)make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom;

(e)cooperate with a process designed to enable determination of an application;

(f)complete a form accurately and completely;

(g)attend an interview and answer questions accurately and completely;

(h)make an appointment.

(3)A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1).

(4)A person guilty of an offence under subsection (3) shall be liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or

(b)on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.

(5)If a constable or immigration officer reasonably suspects that a person has committed an offence under subsection (3) he may arrest the person without warrant.

(6)An offence under subsection (3) shall be treated as—

(a)a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and

(b)an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.

(7)In subsection (1)—

  • “travel document” means a passport or other document which is issued by or for Her Majesty’s Government or the government of another State and which enables or facilitates travel from the United Kingdom to another State, and
  • Detention Centre Rules 2001 SI No 328 provide that:

    These Rules make provision for the regulation and management of detention centres. They provide for matters such as the welfare and privileges of detained persons, their religious observance, correspondence, health care and any complaints they wish to make, as well as the use of security measures such as powers of search and removal from association in certain circumstances. The Rules also provide for the duties of detainee custody officers. In addition, the Rules make provision as to the making of visits by members of the Visiting Committee and for the making of reports by them to the Secretary of State.

    Rule 33 provides that all detention centers shall have a health care team including a general practitioner. Rule 34 provides that every detained person is to be given a physical and mental examination by a medical practitioner within 24 hours of admission.

    Rule 35 provides:

    Special illnesses and conditions (including torture claims)

    35.—(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

    (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

    (3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

    (4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

    (5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”

    Chapter 55 of the Enforcement and Instructions Guidance provides:

Chapter 55 states among other matters that the power to detain must be retained in the interests of maintaining effective immigration control but that there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used. Detention must also be in accordance with stated policy on the use of detention.

Detention is considered to be most usually appropriate to effect removal; initially to establish a person’s identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. The policy acknowledges that to be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. A properly evidenced and fully justified explanation of the reasoning behind the decision to detain must be retained on the Home office file in all cases.

Cases concerning foreign national offenders are subject to the general policy including the presumption in favour of temporary admission or release however, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the ‘deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. The policy also states that due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.

The   policy clarifies that non- EEA Foreign national offenders who do not meet automatic deportation requirements must be considered for deportation if they meet the following criteria: a court recommendation for deportation; a custodial sentence of any length for a serious drug offence; custodial sentence of 12 months or more, either as a single sentence or an aggregate of two or three sentences over a period of five years.

The policy further states the relevant power to detain must only be used for the specific purpose for which it is authorised; that detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with Article 5 of the ECHR and would be unlawful in domestic law (unless one of the other circumstances in Article 5(1)(a) to (e) applies). The detention may only continue for a period that is reasonable in all the circumstances for the specific purpose. If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and the detaining authority, should act with reasonable diligence and expedition to effect removal.

Persons detained under Immigration Act powers may be detained in any place of detention named in the Immigration (Places of Detention) Direction 2014. This includes police cells, immigration removal centres, prisons or hospital.

Written reasons for detention should be given in all cases at the time of detention. Once it has been identified that the person is one who should be detained, consideration should be given to what, if any, level of risk that person may present whilst in detention. Monthly reviews should be conducted using the detention review template. For each review, robust and formally documented consideration should be given to the removability of the detainee. Rule 9 of the Detention Centre Rules 2001 sets out the statutory requirement for detainees to be provided with written reasons for detention at the time of initial detention, and thereafter monthly (in this context, monthly means every 28 days). Detention reviews are considered necessary in all cases to ensure that detention remains lawful and in line with stated detention policy at all times. There is no requirement for adult detention to be reviewed during the early stages in criminal casework cases.

The policy states that the purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case. Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma.

The policy provides that pregnant women should not normally be detained. The only exception to this general rule is where removal is imminent and medical advice does not suggest confinement before the due removal date.

As a general principle, even where one of the statutory powers to detain is available in a particular case, unaccompanied children (that is, persons under the age of 18) must not be detained other than in very exceptional circumstances. If unaccompanied children are detained, it should be for the shortest possible time, with appropriate care.

Most importantly Chapter 55 provides:

“ 55.10. Persons considered unsuitable for detention:

 Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.

 In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.

 The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:

  • Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).
  • The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.
  •  Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this.
  • Those suffering from serious medical conditions which cannot be satisfactorily managed within detention.
  • Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
  • Those where there is independent evidence that they have been tortured.
  •  People with serious disabilities which cannot be satisfactorily managed within detention.
  • Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).

 If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file”.

SOME RELEVANT CASELAW

There is no express time limit which governs the exercise of the power to detain. It is, however, subject to the Hardial Singh principles.

The common law principles in R v Govenor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704 are summarised in Lumba v Secretary of State for the Home Department [2011] UKSC 12:

“22.It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196 para 46 correctly encapsulates the principles as follows:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.

The Court decides whether or not the Hardial Singh principles have been complied with (A (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 804”.

 Lumba v Secretary of State for the Home Department [2011] UKSC 12 , the Supreme Court also considered the relevance of a failure to cooperate with voluntary return:

“127.It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.

128.What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a “trump card” which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), “the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.” If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them”.

A detainee’s psychiatric condition is relevant to the impact of detention on the detainee, Lumba v Secretary of State for the Home Department [2011] UKSC 12:

“218.I therefore agree, and (subject to the additional points made above) for the reasons given by Lord Dyson, that both these appeals should be allowed. When considering what was a reasonable period for which to detain Mr Lumba in accordance with the Hardial Singh principles, however, I would stress that his psychiatric condition must be among the factors to be taken into account”.

Beatson LJ in R(Das) v Secretary of State for the Home Department [2014] EWCA Civ 45 said that the state of a person’s mental health is a relevant factor which will affect what is a reasonable period of detention in his case:

“16.     It is clear from the decisions on the Hardial Singh principles that the state of a person’s mental health will affect the determination of what is a reasonable period for which to detain that person: see Baroness Hale in Lumba’s case at [218] and Dyson LJ in M v Secretary of State for the Home Department [2008] EWCA Civ. 307 at [39]. M’s case was one in which, before this Court, it was not contended that his detention was in breach of the Secretary of State’s policy, at that time contained in §38.10 of her Operational Enforcement Manual. Dyson LJ stated that where detention has caused or contributed to a person’s suffering mental illness that is a factor which “in principle” should be taken into account in assessing the reasonableness of the length of the detention. But, he also stated that in such cases “the critical question … is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering”.

  1.     I add that, whether or not the policy is strictly engaged, as part of the operation of the Hardial Singh principles (see [16] above), in assessing whether to detain a person known to have a mental illness, particular care is needed. The Secretary of State, through her officials, should consider whether, if the decision is taken to detain, particular arrangements will need to be made for the detainee’s welfare and to monitor him or her for signs of deterioration.
  2.     The Secretary of State is not entitled to abdicate her statutory and public law responsibilities to the relevant health authorities or clinicians in the way deprecated by Singh J in R (HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) at [155] and [181]………………”

CASELAW- SOME INSTANCES IN WHICH DETAINEES HAVE BEEN FOUND TO HAVE BEEN UNLAWFULLY DETAINED

Xue v Secretary of State for the Home Department [2015] EWHC 825 (Admin):

This was a claim for unlawful detention. The Claimant, a Chinese Citizen, was detained by the Secretary of State from 2 March 2012 to 17 June 2014, when she was released, having been granted bail   on 13 June 2014. The claim was issued on 9 June 2014. Permission to apply for judicial review was granted on the papers on 10 October 2014.

The Judge deciding the case admitted that she had not found the case an easy one to decide as it was a case in which the competing claims of firm immigration control and of the welfare of an individual starkly conflicted. The Court noted that the Claimant was detained administratively for over two years. The longer her detention went on, the more vulnerable she became. Her physical health became significantly compromised, probably permanently. Her mental health also declined in detention. She eventually fell down a stairwell and broke her back. The Court however noted that she was a foreign national who had no right to be in the UK. Her account of the reasons why she left China has been disbelieved by the First-tier Tribunal. The Secretary of State had decided that she should be deported on public interest grounds, because of her persistent record for offences of dishonesty. She also had a very poor history of absconding while on temporary admission. She had no passport. During her detention she did not initially co-operate with the Secretary of State’s attempts to get her an emergency travel document (“ETD”). The lack of an ETD was, for over a year, the only barrier to her removal. It was submitted among other matters on behalf of the Secretary of State that it was not for the Court to exercise what was described as a “superhero” jurisdiction by seeking to put right perceived injustices arising from immigration detention.

The Court   noted its concern as regard the overall length of the Claimant’s detention, given its effects on the Claimant; that despite the medical evidence sent to the Secretary of State by her solicitors, she seemed to have been seen by a psychiatrist only once during her detention and his recommendations for her treatment did not seem to have been followed. The Claimant was, for much of that period, an undoubted flight risk, and posed an undoubted risk of committing further offences. But the risk of harm to the public was always acknowledged by the Secretary of State to be low.

The first issue for consideration for the Court was whether her continuing detention breached the Hardial Singh principles at any point. In the Court’s judgment, on the basis of a second medical report, which was not contradicted, the length of time for which the Claimant had been detained, coupled with the effect of detention on her, and the likelihood of worsening in her mental and physical health, it would not be reasonable for her to be detained any longer. The risk of absconding, and of committing further offences was reduced by the physical consequences of the Claimant’s fall, and by the mental and physical frailty noted by the Deputy Healthcare Manager of the Immigration Removal Centre.

The Court also concluded that the theme of the medical evidence served by the Claimant’s solicitors was that her conditions were not being satisfactorily managed in detention. This meant that the Secretary of State had an obligation to take reasonable steps to inform herself sufficiently about the relevant circumstances so as to be able to make an informed judgment about whether the Chapter 55.10 did apply to the Claimant, who was suffering from physical as well as mental illnesses. The Judge was not satisfied that any of the medical reports were taken into account by those who authorised the Claimant’s detention at any stage after it was served, nor was the Court satisfied that the Home Office caseworker took reasonable steps to ask the healthcare staff about the material in the reports.

The Court rejected the Secretary of State’s submission that the absence of any Rule 35 report from a medical practitioner in the Immigration Removal Centre entitled the Secretary of State to ignore, without further investigation, reports from doctors outside the Immigration Removal Centre.

The Court further   rejected the Secretary of State ‘s submission that the medical reports had not been taken into account from the fact that they were not referred to in the detention reviews on the basis that Reviews are internal documents and it should not be expected that they will contain everything a decision maker has considered. The Judge accepted that a decision maker is not required to refer in a decision to every consideration which is relevant to the decision. The decision need only reflect his views on the issues which are important to the decision. However on these facts, this was a relevant consideration of great importance. Moreover, Chapter 55.1. requires a decision maker to ensure that “a properly evidenced and fully justified explanation of the reasoning behind the decision to detain” is retained on file in all cases. There was no witness statement from the Secretary of State, and no material suggesting that these reports were taken into account when officials decided to maintain detention. The Court concluded that the fact that they were not referred to in the detention reviews meant that they were not taken into account.

The Court decided that the breaches of public law mean that the Claimant’s detention was unlawful from the 16 July 2013. The Claimant was only entitled to nominal damages for that unlawful detention unless the Court was satisfied on the balance of probabilities that if the Secretary of State had taken the reports of the Claimant’s experts into account, and had complied with her duty of inquiry, she could lawfully have continued to detain the Claimant, and would have done so. On balance, the Court concluded that she could, and would have, done so. If the Secretary of State had taken the reports into account and made inquiries, the Judge considered that it was probable that the healthcare staff at the Immigration Removal Centre would have indicated that the Claimant’s conditions could be managed satisfactorily in detention. On the authorities, the Secretary of State did not have to be satisfied that the Claimant’s conditions would improve in detention, only that they be kept stable.

This claim succeeded and the Claimant’s detention was found to be unlawful from 16 July 2013. She was however only entitled to nominal damages up until 2 May 2014, the date when she was returned to detention from hospital after her fall. At that point, the Court held that her continued detention was a breach of the second Hardial Singh principle, and she was entitled to an award of damages to reflect that.

The Queen on the Application of ZA(Iraq) 2015 EWCA Civ 168:

This was a claim for unlawful detention. The case concerned an appeal against the Order dated 2nd December 2013 of Mr. C M G Ockleton, sitting as a Deputy Judge of the High Court dismissing the Appellant’s claim for judicial review of the lawfulness of his immigration detention between 4th July 2007 and 14th August 2009. The Deputy Judge decided that from 4th July 2007 until 9th September 2008 the Appellant’s detention was at least partly motivated by the unlawful policy identified by the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12, and that for a period of three months, in June, July and August 2008 the Secretary of State had failed to carry out detention reviews, but he decided that the Appellant was entitled to only nominal damages for those periods of detention because he would have been detained in any event and, applying the principles in R v Govenor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704, his detention throughout the whole of the period from 4th July 2007 – 14th August 2009 was not unlawful.

The real focus of the appeal in the Court of Appeal was on principle (iii) of the Hardial Singh Principles. The issue was therefore, whether the Secretary of State should have realised either by early 2008, or if not by then, by 10th November 2008 at the latest, that it would not be possible to return the Appellant to Iraq within a reasonable time. Two strands of the Deputy Judge’s reasoning were considered relevant for the purpose of resolving this issue. First, the Deputy Judge’s conclusion that the Secretary of State was at all relevant times entitled to take the view that the Appellant might co-operate in the removal process. Second, his conclusion that a number of decisions of the Administrative Court dealing with the prospects of removal to Iraq demonstrated that throughout the period of six and a half years from March 2005 – September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful. The Deputy Judge had concluded that there was no reason to depart from that line of authority.

The Court of Appeal decided that the Deputy Judge’s conclusion that the Secretary of State  was at all times entitled to take the view that the Appellant might co-operate in the removal process in due course was a conclusion which was not reasonably open to him upon the basis of the Secretary of State’s own case. Contrary to the submissions in the Secretary of State’s Skeleton Argument (which stated that there is nothing to suggest that the Appellant in the case had ever made it clear that he would not leave voluntarily), the Secretary of State’s own  Summary Grounds and Detailed Grounds of Defence indicated that the Appellant was unwilling to take up the Home Office’s repeated offer of the opportunity to return voluntarily under the Facilitated Return Scheme(FRS). The Court of Appeal considered that given that the Appellant had been in the United Kingdom since 1973 that unwillingness was not in the least surprising, and was reflected in the representations that had been submitted by the Appellant’s Solicitors. The Court of Appeal concluded that such evidence as there was on this issue before the Deputy Judge was all one way: there was no basis on which the Secretary of State was entitled to take the view that the Appellant might co-operate in the removal process in due course, and her own case in the Summary and Detailed Grounds made it clear that she did not in fact take that view.

The Court of Appeal further considered that the submission, which the Deputy Judge accepted, that the cases listed in the judgment demonstrated that over the period of six and a half years from March 2005 to September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful, was oversimplistic.

Having given consideration to the issues, the Court of Appeal accepted the submission that as regards prospect of an enforced removal of this Appellant to Iraq within a reasonable time in early – late 2008 there was no such prospect. By the summer of 2008 there appeared to have been a reversal of some of the improvements that had been noted in 2007. In the absence of a significant improvement no enforced returns would be achievable for many months at least.

The Court of Appeal observed that the cases listed in the Deputy Judge’s judgment demonstrated that for the period of six and a half years from March 2005 to September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful. A conclusion in any particular case that removal could be effected within a “reasonable time” would depend on the individual circumstances of that case, including the time already spent in detention, the prospects for voluntary removal etc. The Court of Appeal decided that insofar as the decisions relied upon by the Secretary of State are of any evidential value for the purposes of the present case they demonstrate that by, at the very latest, 10th November 2008 it would have been apparent to the Secretary of State (if she had considered the matter, as to which there is no evidence) that there was no prospect of effecting an enforced removal to Iraq of the Appellant, who had by then been in detention for eighteen months, within a reasonable time. The Deputy Judge’s conclusion to the contrary was one which was not reasonably open to him on a proper analysis of the only material relied upon by the Secretary of State.

In an attempt to overcome the lack of any evidence to support the Secretary of State’s case as to the prospects of enforced removal to Iraq in 2008, it was submitted that the correct test was not whether the Secretary of State had any reason to believe that removal could be effected within a reasonable time, but whether the Secretary of State had any reason to believe that removal could not be effected within a reasonable time, and there was no evidence of any such reason in the present case. The Court of Appeal considered that the submission was flawed for two reasons:(1) As a matter of principle, the onus is on the Secretary of State to justify the lawfulness of continued detention; (2) As a matter of fact, there was good reason to believe in 2008 that the enforced removal to Iraq of this Appellant would not be possible within a reasonable time. Since enforced removals had not been possible since 2004 it would have been obvious in 2008 that in the absence of a significant and sustained improvement enforced removal would not be achievable for many months.

The Court of Appeal decided that the Deputy Judge’s conclusion that for the whole of the period between 4th July 2007 and 14th August 2009 there was no point at which the Secretary of State was not entitled to the view that the Appellant could be removed within a reasonable time was one which was not open to him on the evidence as to the prospect of voluntary removal and the prospect of enforced removal in 2008. Whatever hopes the Secretary of State might have entertained earlier in 2008 could not reasonably have been entertained by the time of her decision on 10th November 2008. There was no evidence to support the Secretary of State’s submission that the Appellant’s continued detention after that date until 14th August 2009 was lawful. Such evidence as there was in the case was capable of leading to the conclusion that the Appellant’s continued detention after 10th November 2008 was unlawful. The Appellant’s appeal was therefore allowed to that extent.

CONSIDERATIONS

Despite the Secretary of State’s Chapter 55   Policy stating that, “ Detention must be used sparingly, and for the shortest period necessary”, in practical reality and more so where foreign national criminals subject to deportation are concerned, there is obvious reluctance by the Home Office to release detainees from detention. Where a request for temporary release is refused by the Secretary of State and where a bail application before a Tribunal Immigration Judge fails, then unless there is a successful judicial review challenge in the High Court, affected detainees like Ms Xue can expect to languish in detention for prolonged periods of time-  regardless of an apparent deterioration   of health.

Rather then keep Ms Xue in detention for such an unjustified of period of time and well before her mental and physical condition had deteriorated   to the extent that her circumstances  were akin to a deprivation of her dignity , she could have been released on reporting conditions – even despite the previous   history of non-compliance. The Secretary of State had refused to release her as she had no basis of stay in the UK being subject to deportation action regardless of her health increasingly deteriorating during the period of detention rendering her so vulnerable such that by the time she was released she had various mental and physical health conditions she had not suffered from prior to being detention.

As in the case of ZA, sometimes  unstable security conditions in some countries are such that it is not possible for nationals of that country to return there in particular where there is a policy against enforced returns. The Secretary of State however usually insists that a detainee could “cooperate”  with removal and make a voluntary return. As in ZA, the higher courts have found against the Secretary of State against these arguments and found a detainee to have been unlawfully detained.

 SOME TACTICS

Subject to funding issues and there being merit in relation to the claim, among other matters where a claim for unlawful detention is intended to be commenced,   consideration may be given to undertaking the following:

  • Obtain any uptodate medical notes from the place of detention- usually an Immigration Removal Centre;
  • Seek to contact the detainees’ Medical General Practitioner, if they had one, to seek to ascertain whether they had any pre-exiting physical and/or mental health conditions prior to detention;
  • Instruct an Expert Psychiatrist and/or Expert Physician   to attend upon, assess the detainee and provide an opinion among other issues as regards a diagnosis and also as regards the effect of detention on the detainees’ physical and mental health condition and ensure any relevant issues of causation are put forward to the expert to address in the letter of instruction;
  • As the Secretary of State is required to properly evidence and provide fully justified explanations of the reasoning behind the decision to detain, where there is a vulnerable detainee, seek  to write to the Secretary of State   requesting that a suitably qualified medical expert attend upon the detainee;
  • Seek to obtain via a Subject Access Request from the Home Office,  the detainee’s papers and seek to ascertain that relevant disclosure has indeed been made in particular  as regards documents relating to the detainee’s period in detention and any efforts and progress made by the Secretary of State to seek to obtain travel documents for return;
  • Ensure relevant documents are in sight regarding past criminal matters such as the Sentencing Judge’s Remarks, pre-sentence reports, OASYS Report , Noms report;
  • Ensure that papers relating to past immigration/asylum matters are in sight to present a full picture of the detainee’s immigration history ;
  • Seek to ascertain directly in writing and by phone with the relevant Embassy in London(with the detainee’s written informed consent and where no protection or human rights issues arise) as regards the actual communication which the Secretary of State has truly been undertaking to seek  to effect removal/deportation.

CONCLUSION

If  there is indeed a presumption in favor of liberty, then there should be a time limit to periods that are spent in UK immigration detention. Whilst the UK Government takes its time on the issue,  claims such as Ms Xue’s will inevitably  continue to   trouble the higher courts.


Which Crisis is the UK Government dealing with: The European Refugee Crisis Or The Syrian Refugee Crisis ?

As recently as 2 September 2015, the UK Prime Minister  stated that the refugee crisis would not be solved by Britain taking more refugees yet on 4 September 2015 he performed a sudden u-turn and announced that Britain would accept thousands more Syrian refugees.  The Guardian however  reported on 4 September 2015 that, ” Downing Street declined to put an exact figure on the number of refugees who will be flown to Britain from refugee camps in countries bordering Syria…Cameron suggested Britain wanted to take refugees from the camps to discourage people from making the “harzadous” journey to the UK.  Refugees travel to the UK because they can claim asylum in Britain. The Prime Minister said:”We will continue with our approach of taking those from the refugee camps. This provides them with a direct and safe route to the UK, rather than risking the harzadous journey which has cost so many lives. We will discuss how best to design these schemes and the numbers we will take with NGOS and partners. And we will set out further details next week”.

It seems the UK government’s current sudden position( in order to appease the increasingly mounting criticisms against its expressed reluctance to take in asylum seekers entering Europe) is  to deal not with Syrian asylum claimants already within Europe itself but with those  who have been ascertained in advance as needing protection.

The announcement of 4 September 2015, however is not the first time that the UK Government has bowed to pressure to accept Syrian refugees. Again following pressure, on 29 January 2014, the Home Secretary announced that the UK Government would establish a programme to offer resettlement in the UK to those they considered “vulnerable”  Syrian refugees. The Home Secretary described the “vulnerable person  relocation(VPR) scheme” as separate to but “entirely consistent” with the UNHCR’ s existing resettlement programme. Those to be prioritised would involve victims of sexual violence, the elderely, victims of torture and the disabled. Those resettled under the UK’s  scheme were to be granted 5years Humanitarian Protection and have access to public funds and the labour market. At that time the UK Government said that it expected several hunded refugees to arrive over the next three years. The first group of resettled refugees arrived in the UK on 25 March 2014. Press reports suggested that this group consisted of 10 to 20  people. As at 24 June 2014, 50 people had been resettled under the scheme-House of Commons Parliamentary Brief of 30 July 2014 titled In Brief: Syrian Refugees and the UK.

A UNHCR FactSheet of 18 August 2015 states that the United Kingdom Government and and Northern Ireland have so far accepted 187 refugees under the Vulnerable Persons Relocation Scheme.

On 4 September 2015, the United Kingdom Government announced that it had taken 216 people under the Syrian Vulnerable Person Scheme.  It was also clarified that since 2011, the UK has granted protection to almost 5000 Syrians through  normal asylum procedures. Accepting Syrian asylum seekers through normal challenges is clearly just what the UK Government wants to avoid-most of the claimants arrive in Europe  and therefore the UK undocumented to claim asylum and as such there is little the UK Government  can do to limit the numbers seeking to claim asylum once they have entered the UK.

A press release statement of 4 September 2015 by the UN High Commissioner for Refugees, Antonio Guterre, on the  Refugee Crisis in Europe states, ” The European Union is preparing key emergency meetings to take decisions in its response to the present refugee and migration crisis.  The situation  requires a massive common effort that is not possible with the current fragmented approach. Europe is facing its biggest refugee influx in decades…..But overall, Europe has failed to find an effective common response, and people have suffered as a result……This is a primarily  refugee crisis, not only a migration phenomenon. The vast majority of those arriving in Greece come from conflict zones like Syria, Iraq or Afghanistan and are simply running for their lives. All people on the move in these tragic circumstances deserve to see their human rights and dignity fully respected, independently of their legal status…….Europe cannot go on responding to this crisis with a piecemeal or incremental approach…..People who are found to have a valid protection claim in this initial screening must then benefit from a mass relocation programme, with the mandatory participation of all EU member states”.

By seeking to soley announce special provisions for Syrians refuges only, could the United Kingdom government be said to be dealing with a crisis affecting Europe in a fragmented way?  The resettlement programme they began last year does not appear to have much assisted the problem.

Despite the Government’s undoubtedly welcome policy to bring in more Syrian refugees via a resettlement scheme, it still remains possible for Syrians and refugees of other nationalities  to make their way across Europe, into the UK and claim asylum here  and as such the UK government will in the long term still have to deal  with and engage with the rest of Europe as regards solutions to the current crisis. The UK Government cannot therefore  by-pass true engagement with the rest of Europe simply by announcing they will accept refugees of a certain nationality but not  for example Eritreans, Afghanis, or Iraqis.

No Short Cuts: Absent Compelling Circumstances, Attempting to Circumvent the Rules in Family Visit Appeals Via An Article 8 Claim Exceedingly Unlikely

Within the last 6 months, the Upper Tribunal has thrice published caselaw in relation to Article 8 of the ECHR as it applies to   visit appeals. Long after the removal of full rights of appeal in family visit cases, it is clear from these Decisions that  First Tier Tribunal Judges appear to be facing legal difficulties in this regards, still grappling with the applicability of Article 8 of the ECHR   as regards related visit appeals. First Tier Tribunal Judge are either still allowing appeals by reference to the Immigration Rules with a total disregard of Article 8 or if having regard to Article 8,  the correct approach is not being followed.

The cases of Mostafa, Adjei and now very recently, Kaur seek to set out the correct relevant principles applicable to this area of law.

By way of reminder, on 25 June 2013, Section 52 of the Crime and Courts Act 2013 abolished the full right of appeal in family visitor cases unless brought on grounds alleging that the decision shows unlawful discrimination or is unlawful under s.6 of the HRA 1998.

Paragraph 41 of the Immigration Rules previously set out the requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor. As from 24 April 2015 Appendix V became effective and this now sets out the Immigration Rules for visitors. Part V4.1 of Appendix V sets out that the decision maker must be satisfied that the applicant meets all of the eligibility requirements in paragraphs V 4.2 – V 4.10. A person can therefore apply for a Standard Visitor visa to visit the UK to visit family and friends.

Because of the nature of the short durability of visitor visas, when the limited rights of appeal came into effect it might have been viewed that considerations of Article 8 in visit entry clearance appeals differed markedly from considerations in relation to leave to remain applications and appeals. The Upper Tier Tribunal ‘s recent decisions however make it clear that there are to be no “short-cut approaches” and that full consideration of relevant Article 8 assessments and caselaw is necessary. On this basis, having regard to the fact that in –country Article 8 claims mainly succeed with considerable effort, it would appear that the  mere availability of the limited right of appeal on Article 8 grounds in visit appeals may in practice and in terms of success be just illusory.

RELEVANT CASELAW- THREE DECISIONS OF THE UPPER TIER TRIBUNAL

Mostafa, Adjei and Kaur made applications for entry clearance prior to Appendix V coming into effect hence the references to Paragraph 41 of the Immigration Rules within the judgements. Among others, the requirement that an applicant must satisfy the decision maker that they are a genuine visitor and will leave the UK at the end of their visit still continues to apply under the new Rules as it did under the old and therefore the considerations in the said caselaw are still relevant today.

Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC):

The Appellant wished to visit his wife, a British citizen in the UK. Following the refusal of the visit application, the grounds of appeal to the First Tier Tribunal clearly expressed disagreement with the Entry Clearance Officer’s finding that the Appellant did not intend to return after the visit they additionally and unequivocally relied on Article 8 of the European Convention on Human Rights. The First Tier Tribunal Judge however allowed the appeal under the Immigration Rules but made no finding on the ground raising Article 8. The Upper Tier Tribunal made it clear that there can be no question of entertaining an appeal on grounds alleging that the decision was not in accordance with the law or the immigration rules and the initial Judge ‘s decision was set aside. The Upper Tribunal decided that the First Tier Tribunal did have the power to consider a ground of appeal contending that the decision was incompatible with the Appellant’s Convention rights but it neglected to consider that ground even though it was clearly raised. The Upper Tribunal however found that the Appellant had shown that refusing him entry clearance did interfere with his and his wife’s private and family lives and found it necessary to assess the evidence to see if the Appellant met the substance of the rules. The Tribunal clarified that the ability to satisfy the rules illuminates the proportionality of the decision to refuse the Appellant entry clearance. Having re-made the decision, it was concluded that the First Tier Tribunal should have allowed the appeal not under the Immigration Rules but on Article 8 grounds. The Upper Tribunal therefore allowed the appeal of the Appellant against the decision of the Entry Clearance Officer under Article 8 ECHR.

Adjei (visit visas – Article 8) [2015] UKUT 261 (IAC)

The Appellant applied for entry clearance so that she could visit her father, step mother and step siblings who lived in the UK. Upon refusal of the visit visa, she relied only upon grounds that the refusal infringed rights protected by Article 8 of the ECHR and that was the basis upon which the Appellant put her case to the First-tier Tribunal. The Upper Tier Tribunal decided that it was unambiguously clear that the decision of the First Tier Tribunal to allow the appeal disclosed material legal error. That was because despite the fact that the grounds for appealing were based, and could only be based upon the asserted infringement of the Appellant’s human rights, the Judge allowed the appeal on the basis that refusal was not in accordance with the immigration rules. There is no discussion in the First Tier Tribunal Decision at all of the grounds upon which the appeal was brought and it was plain that the Judge had simply not engaged with or considered the claim under Article 8. Therefore the decision to allow the appeal was set aside and the Upper Tier Tribunal proceeded to remake the decision afresh.

The Upper Tier Tribunal observed that the question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether Article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the entry clearance officer under the Rules and should not do so. If Article 8 is engaged, the Tribunal will need to look at the extent to which the applicant is said to have failed to meet the requirements of the rule because that will inform the proportionality balancing exercise that must follow.  The Upper Tier Tribunal in Adjei referred to the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC), the head note of which states:

“In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.”

Mostafa was stated not to be authority for the proposition that, despite the legitimate legislative intention to remove a right of appeal against adverse entry clearance applications in visit cases on the grounds that the Entry Clearance Officer was wrong to find the claimant did not meet the requirements of the rules, the Tribunal can nonetheless continue to determine such issues. It was emphasised that the point being made in Mostafa at para [24] was simply that where it is established that Article 8 is in fact engaged, it will still be necessary to assess whether the claimant meets the substance of the rules:

“In the limited class of cases where Article 8 (1) ECHR is engaged the refusal of entry clearance must be in accordance with the law and proportionate. If a person’s circumstances do satisfy the Immigration Rules and they have not acted in a way that undermines the system of immigration control, a refusal of entry clearance is liable to infringe Article 8.”

A person who satisfies the Tribunal that he does meet the requirements of paragraph 41 of HC 395 does not succeed on that account. He still has to demonstrate that refusal represents an unlawful infringement of rights protected by Article 8 of the ECHR. For a person who does not satisfy the requirements of paragraph 41 to succeed in an appeal there would have to be cogent and compelling reasons demanding that he should succeed.

The Upper Tribunal in Ajdei also stated that it was made clear in Mostafa at para [24] that it was dealing with a very narrow range of claimants:

“… In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together.”

Adjei decided that it is a question of fact in each case, whether relationships between adult relatives disclose sufficiently strong ties such as to fall within the scope of Article 8, however the Appellant in that case was noted to have established her own family life in Ghana with her partner and their daughter and while her adult siblings in the United Kingdom have not yet done so. The Upper Tribunal noted that it was established by Advic v United Kingdom (1995) 20 EHRR CD125 that the protection of Article 8 does not extend to links between adult siblings living apart for a long period where they were not dependant upon each other. There was no evidence of such dependence between these siblings or step-siblings. Finally it was well established that there must be more than the normal emotional ties between adult relatives for family life to exist for the purposes of article 8 of the ECHR: Kugathas v IAT [2003] EWCA Civ 31.

The Upper Tribunal in Adjei decided that it was clear that the circumstances of the Appellant and her relatives in the United Kingdom did not give rise to family life for the purposes of Article 8 of the ECHR and therefore the grounds of appeal advanced before the Tribunal were simply unarguable. The Upper Tribunal therefore substituted a fresh decision to dismiss the Appellant ’s appeal against the refusal to grant her entry clearance as a visitor.

Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC):

The Appellant wished to visit her third son who was the sponsor, her daughter-in-law and her grandchildren aged 19 and 13 respectively. Following refusal of entry clearance her grounds stated that the decision was not in accordance with the law or the immigration rules and was unlawful under s.6 of the Human Rights Act 1988 (HRA 1998). The First Tier Tribunal Judge allowed the appeal on Article 8 grounds. At further appeal in the Upper Tribunal, it was accepted by those representing the Appellant that the Judge gave cursory attention to the matter of the Appellant’s ability to meet the immigration rules for visitors. The Upper Tribunal noted that in visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. The Judge cannot ignore the decision in front of him. Whilst such requirements are clearly not Article 8 considerations there is at least one obvious overlap in subject-matter when the applicant seeks to visit family members, namely that the genuineness of the intentions behind the visit and may be highly material to the issue of whether there is family life within the meaning of Article 8(1) and/ or the issue of whether there are strong family life reasons for the visit that are to be weighed in the balance under Article 8(2). In this context an inability to maintain and accommodate without recourse to public funds or employment may also be material to any Article 8 proportionality exercise. Whilst therefore Judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the HRA 1998 (or shows unlawful discrimination), the starting-point for deciding that must be the state of the evidence about the applicant’s ability to meet the requirements of Paragraph 41.

The upper Tribunal observed that it was also important to bear in mind in Article 8 visit appeals that the restriction of grounds of appeal to human rights does not mean that Judges are relieved of their ordinary duties of fact-finding or that they must approach these in a qualitatively different way. But where there is a dispute about the facts that is relevant to the Article 8 assessment, the Judge must seek to resolve it by taking into account the evidence on both sides, bearing in mind that the burden of proof rests on the appellant.

The Upper Tribunal noted that the question arises as to whether the visitor rules are also relevant in an additional way, as evidence of the public interest in the maintenance of effective immigration control. It seemed to the Upper Tribunal in Kaur, that this question was one that Judges must ask as part of their duty to apply a two-stage approach to Article 8 considerations. It was decided that as is clear from cases such as MM & Ors [2014] EWCA Civ 985, the two-stage approach is not confined to in-country appeals; it applies to entry clearance appeals also.

The visitor rules must in common sense be seen as part of parcel of the system of controls and as reflecting the public interest in regulation of entry and exit, by preventing unrestricted access for overseas visitors (including those seeking to visit family members in the UK) and requiring them whilst in the UK to avoid being a burden on public funds and health and education services and to refrain from engagement with the labour market. The Upper Tribunal decided that against this background, the need (emphasised in Adjei) to look at the extent to which the applicant is said to have failed to meet the requirements of the rules is important for an additional reason. For if an applicant has failed to meet the rules, that is apt to demonstrate that the refusal is in the public interest at a general and particular level. This background fortified the Upper Tribunal in their view that a Judge limited to deciding whether the refusal of entry clearance to an appellant is compatible with Article 8 cannot – and must not – avoid taking the factual situation as regards the ability of the appellant to meet paragraph 41 as a starting point.

In deciding whether Article 8(1) is engaged, for example, the Judge must be satisfied that there is a factual content to the claimed private and family life. If the evidence relating to the ability to meet the requirements of paragraph 41 discloses to the judge that the visitor has no real family ties or that the visitor does not genuinely intend a visit, that may have a direct material bearing on the decision as to whether Article 8(1) is engaged. Similarly, evidence regarding the applicant’s ability to meet the requirements of the rules may sound on whether the decision constitutes interference and also on whether, if there is interference, it is proportionate.

Overall, unless an appellant can show that there are individual interests at stake covered by Article 8 “of a particularly pressing nature” so as to give rise to a “strong claim that compelling circumstances may exist to justify the grant of leave to enter outside the rules” he is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals.

The Upper Tier Tribunal in Kaur also stated that having considered the two cases of Mostafa and Adeji there was no conflict between them. Both Panels were properly concerned to establish the limited ambit of an Article 8 appeal in the visit visa context, tribunal Judges having no jurisdiction to allow or dismiss an appeal on the basis of it not being in accordance with the rules (or the law). Both were also concerned to establish that the rules on visitors and Article 8 constitute two separate legal regimes. Even if a person meets the requirements of paragraph 41, that does not necessarily establish they win under Article 8; e.g. Article 8(1) may not even be engaged. That is why in Mostafa it was emphasised that applicants need to establish that denial of a visit has a material impact on their Article 8(1) rights. Both were also fully aware that the proportionality assessment conducted under Article 8 has to weigh the interests of the individual against the interests of the state in the maintenance of effective immigration control.

The First Tier Tribunal Judge was considered to have materially erred in law and his decision was set aside- first, the Judge wholly or largely ignored the findings of the Entry Clearance Officer as regards the Appellants ’s overall family circumstances and its relevance to ascertainment of her true intentions. Other departure from a correct approach concerned the Judge’s conduct of the Article 8 balancing exercise. Despite beginning and ending with sentences referring to the public interest, the Judge did not weigh anything on the public interest side of the scales at all – neither the public interest at the general level nor at the particular level.

The Upper Tribunal decided that as regards the Appellants ’s ability to meet the requirements of the visitor rules, they did not consider that she had discharged the burden of proof on her to establish that at the date of decision she intended only a family visit. In conjunction with the fact that the Appellant’s latest witness statement still lacked vital details about her sons’ circumstances in India, the Upper Tribunal concluded that her family life ties in India had not been shown to be sufficiently strong for her to have any incentive to return there if she went to the UK. She had not shown only a genuine visit was intended.

The Upper Tribunal was however prepared to accept that even though not financially dependent on her sponsor son, the Appellant enjoyed ties with him and had family that went beyond the normal emotional ties between an elderly mother/grandmother and her sponsor son/grandchildren and fall within the scope of Article 8(1). Although the Upper Tribunal aside the decision of the First-tier Tribunal Judge, they considered that in relation to the issue of whether Article 8(1) was engaged he was entitled to attach particular weight to the evidence that the Appellant had played a central role in bringing up the two grandchildren. The Upper Tribunal however found that there was a weighty public interest in not permitting the Appellant to enter the UK by way of a visit for family purposes.

Furthermore, in order to succeed in a claim outside the visitor rules, an Appellant must show a particularly pressing need so as to give rise to compelling circumstances justifying a departure from the rules. The circumstances identified by the Appellant as arising in her case, in particular the difficulties in the way of the sponsor son and his family visiting the claimant in India, did not in the Upper Tribunal’s judgment amount to compelling circumstances. Indeed, given her age it would if anything appear physically easier for the sponsor son and his family to undertake the necessary journey than the claimant to travel the other way. Bearing in mind that the claimant had some family ties in India, the Upper Tribunal did not consider it disproportionate for her connection with her sponsor son and his family in the UK to be maintained by them visiting, even if that could not be done concurrently. Because the Appellant could not show only a genuine visit was intended, she failed under Article 8(2) no matter how strong her family ties with her sponsor son and his family. The Upper   Tribunal therefore dismissed the Appellant’s appeal.

CONSIDERATIONS AND CONCLUSION

The Appellants in Kaur and Adjei failed in their appeal under Article 8 of the ECHR. Mostafa succeeded. It was however noted  in Mostafa by the Upper Tribunal that a refusal of entry clearance would have a significant impact on the Appellant’s right to enjoy family life with his spouse: the Appellant had strong ties with Egypt including those arising from his being in regular, rewarding work and his children living there. Additionally the sponsor had property in Egypt and had organised her affairs to spend long periods of time there. The Sponsor wanted to return to her country of nationality (the United Kingdom) for a time and her husband wanted to be with her, not with a view to settlement but so that he could share her life and relationships in the United Kingdom. The refusal decision had a material impact on their right to enjoy family life. Further it was considered that the First-tier Tribunal had correctly decided that the Appellant satisfied the substantive requirements of the Rules.

Following a refusal of a visa application in family cases, some   applicants might seriously consider whether an appeal should in fact be lodged in comparison to re-applying when circumstances significantly change to a sufficiently compelling level. The principles mentioned in the above caselaw   await any such lodged appeal. Kaur makes it clear that unless there are strong compelling circumstances, Article 8 appeals in visit appeals are very unlikely to succeed.

Even where family life can be established, an appeal may fail having regard to considerations of proportionality. With these risks in mind, some applicants may also not lodge appeals as upon following consideration at appeal,  any last negative decision of the Tribunal may fall for adoption by the entry clearance officer in future refusal decisions unless   circumstances can be said to be truly compelling at the time of that next application.

An applicant may present his own visit visa application or may chose a legal representative to assit. Either way, it may be best to seek to present the very initial visit application anticipating and   having full consideration to the legal issues relating Article 8 that might arise at appeal in the event of a refusal. Addressing the five Razgar questions identified by Lord Bingham of Cornhill within initial accompanying representations would therefore be essential when requesting within the  visit application that the entry clearance officer   consider Article 8 in the alternative. Therefore making substantive clarifications   also by way of evidence  as “ exhaustively” as possible   in relation to  both the Sponsor and applicant’s personal circumstance and intentions as regards the visit is necessary.

In light of Kaur, preparing  visit applications in family cases with a complacent view that any “gaps or defects” in the evidence or facts can be rectified at appeal in the event of a refusal, will therefore mean the difference between either wholly succeeding at that future appeal, partly succeeding as regards positive findings in relation to article 8 engagement but failing on proportionally or  totally falling from inception to convince the entry clearance officer that Article 8 arises in the first   place thus very possibly resulting in an -outright denial of a right of appeal in family visit cases.

Reducing Net Migration: Is It Not Time That The United Kingdom Government Got It Right On Immigration ?

The UK Government’s threats to those unfortunate enough to be in the UK undocumented ( or the future undocumented) were repeated on 25 August 2015 by Immigration Minister James Brokenshire :

“Anyone who thinks the UK is a soft touch should be in no doubt — if you are here illegally, we will take action to stop you from working, renting a flat, opening a bank account or driving a car. As a one nation government we will continue to crack down on abuse and build an immigration system that works in the best interests of the British people and those who play by the rules. …….” https://www.gov.uk/government/news/new-action-to-make-britain-a-harder-place-for-illegal-migrants.

On 21 May 2015,  BBC News reported that , “David Cameron says he will not give up on his immigration target despite net migration to the UK reaching its highest level for a decade. Net migration rose by 50% to 318,000 last year – with sharp increases from inside and outside the EU. A total of 641,000 people moved to the UK in 2014, the Office for National Statistics said. But the PM said he would not “cave in” and abandon his target of reducing net migration below 100,000”.

The Immigration Act 2014 received Royal Assent only on 21 May 2014 and came into force that year, yet the Government has already started talking about a new Immigration Bill. Yes, the Immigration Act 2014 did bring in new substantial changes however some of the effects of that legislation are beginning to bite  in particular in relation to appeal rights and to those subject to deportation action. It is also already apparent that the judicial interpretation of that Act will leave the higher courts encumbered for several years to come.

On October 2013 the then Immigration Minister Mark Harper MP said as regards the Immigration Bill as it then was:

What we are going to do:

Reform the removals and appeals system, making it easier and quicker to remove those with no right to be here;

End the abuse of Article 8 – the right to respect for private and family life;

Prevent illegal immigrants accessing and abusing public services or the labour market

………………………..

“The Bill will benefit:

 British citizens and legal migrants by:

 Deterring illegal migrants from coming to the UK in the first place;

Allowing the Home Office more effectively to identify, and enforce the removal, of illegal migrants;

Encouraging more of those people who are here unlawfully to leave;

Reducing the cost to the taxpayer of the immigration system through fewer appeals and more cost recovery through fees;

Reducing pressure on services therefore freeing up capacity for the lawfully resident population”.

 One cannot therefore help but have the passing thought that the 2014 Act could and should have catered for what apparently now needs to be “fixed” by yet even more piecemeal legislation intended to be brought into effect.

THE   UK GOVERNMENT’S TOUGH STANCE IN ACTION

Despite   the   Immigration Act 2014 being brought into force, the Government clearly believes that the changes introduced by that Act  are not tough enough……… otherwise why seek to introduce even more substantial legislation so soon?

A summary of the main changes in the 2014 Act are set out below:

  • Section 7 Immigration bail: repeat applications and effect of removal directions:– An applicant may apply directly to the Tribunal to be released on bail. Under provisions in the Immigration Act 2014, if further applications for Immigration Judge bail are made within 28 days of a refusal the Tribunal is required to dismiss the application for bail without a hearing, unless the applicant can demonstrate a material change in circumstances since the Tribunal’s previous refusal. Further an Applicant must not be released on bail without the consent of the Secretary of State if directions for the removal of the person from the United Kingdom are for the time being in force, and the directions require the person to be removed from the United Kingdom within the period of 14 days starting with the date of the decision on whether the person should be released on bail.
  • Section 15 Right of Appeal to the First Tier Tribunal:- amending This sectionnoteType=Explanatory Notes has no associated Part 5 of the Nationality, Immigration and Asylum Act 2002 (immigration and asylum appeals) requiring for section 82 to provide that a person may only appeal to the Tribunal where—

-the Secretary of State has decided to refuse a protection claim;

-the Secretary of State has decided to refuse a human rights claim, or

-the Secretary of State has decided to revoke an affected person’s protection status.

  • Section 17 Place from which appeal may be brought or continued:– Introduced Section 94B of the Nationality, Immigration and Asylum Act 2002. Section 94B 2 allows a human rights claim to be certified where the appeals process has not yet begun or is not yet exhausted and the Secretary of State considers that removal pending the outcome of an appeal would not breach Section 6 of the Human Rights Act 1998. One ground upon which the Secretary of State may certify a claim under section 94B is that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return. The result of certification under section 94B is that the right of appeal against the decision to refuse the human rights claim will be non-suspensive, meaning it will not be a barrier to removal. Any appeal can only be heard out-of-country.
  • Section 19 Article 8 of the ECHR: public interest considerations:– Introduced Part 5A to the NIAT 2002 Act via Sections 117A, 117B, 117C and 117D. In considering the public interest question, the Court or Tribunal must have regard in all cases to the considerations listed in section 117B and in cases concerning the deportation of foreign criminals to the considerations listed in section 117C. The considerations apply in Article 8 cases in relation to assessments of proportionality of removal/deportation.
  • Section 21 Persons disqualified by immigration status or with limited right to rent:- A person is disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement if they are not a relevant national( ie British citizen, an national of an EEA State, a national of Switzerland) and does not have a right to rent in relation to the premises. A person does not have a “right to rent” in relation to premises if he requires leave to enter or remain in the United Kingdom but does not have it, or if his leave to enter or remain in the United Kingdom is subject to a condition preventing him from occupying the premises.
  • Section 38 Immigration health charge:- The Secretary of State provided for a charge to be imposed on applications for leave to enter or remain in the United Kingdom for a limited period
  • Section 40 Prohibition on opening current accounts for disqualified persons:- status checks required of the bank which indicate that person is not a disqualified person, or at the time when the account is opened the bank is unable, because of circumstances that cannot reasonably be regarded as within its control, to carry out a status check in relation to the applicant. A person is caught by the legislation if he is in the United Kingdom, and requires leave to enter or remain in the United Kingdom but does not have it.
  • Section 47 Revocation of driving licenses on grounds of immigration status:- Where it appears to the Secretary of State that a license holder is not lawfully resident in the United Kingdom, the Secretary of State may serve notice in writing on that person revoking the license and requiring the person to surrender the license and its counterpart forthwith to the Secretary of State. A person is not lawfully resident in the United Kingdom if the person requires leave to enter or remain in the United Kingdom but does not have it
  • Section 48Decision whether to investigate proposed marriages and civil partnerships:-
  • If a superintendent registrar refers a proposed marriage to the Secretary of State or a registration authority refers a proposed civil partnership to the Secretary of State, the Secretary of State must decide whether to investigate whether the proposed marriage or civil partnership is a sham.

ANTICIPATED CHANGES

The Queen’s Speech on 27 May 2015 relevantly simply stated that measures would be introduced to control immigration.

A Policy Paper published on 27 May   2015, “Queen’s Speech 2015: what it means for you” clarifies the following in relation to the Immigration Bill :

“Immigration

The purpose of the legislation is to:

  • control immigration, making sure we put hard working British families first
  • support working people, clamp down on illegal immigration and protect our public services

The main benefits of these clauses would be:

  • dealing with those who should not be here, by rooting out illegal immigrants and boosting removals and deportations
  • reforming our immigration and labour market rules, so we reduce the demand for skilled migrant labour and crack down on the exploitation of low-skilled workers

The main elements of the clauses are:

  • illegal working: The Bill will introduce an offence of illegal working, making it clear to migrants who have no right to be here that working illegally in the UK is a crime, with consequences for their earnings. This will provide a firm legal foundation for the wages paid to illegal migrants to be seized as proceeds of crime
  • work: we will create a new enforcement agency that cracks down on the worst cases of exploitation. Exploiting or coercing people into work is not acceptable. It is not right that unscrupulous employers can exploit workers in our country, luring them here with the promise of a better life, but delivering the exact opposite, and the full force of the State will be applied to them. A new single agency will have the scale and powers to do this. The Bill will also make it illegal for employment agencies to recruit solely from abroad without advertising those jobs in Britain and in English
  • skills levy: a consultation will be carried out on funding apprenticeship schemes for British and EU workers by implementing a new visa levy on businesses that use foreign labour
  • services: a clearer bar on access to services by illegal migrants. We will build on the national roll-out of the landlord scheme established in the Immigration Act 2014, and make it easier to evict illegal migrants. We will ensure banks take action against existing current accounts held by illegal immigrants
  • appeals: extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 the last government cut the number of appeal rights but other than foreign criminals, migrants retain an in-country right of appeal against the refusal of a human rights claim. We will now extend the ‘deport first, appeal later’ principle to all cases, except where it will cause serious harm
  • tagging: Require all foreign offenders released on bail to be tagged, so we always know exactly where they are. This will prevent absconding and increase the number of criminals deported”

The following relevant Bills are currently before Parliament:

Illegal Immigrants (Criminal Sanctions) Bill 2015-16; A Bill intended to make provision for criminal sanctions against those who have entered the UK illegally or who have remained in the UK without legal authority. This Bill was presented to Parliament on 6 July 2015. This Bill is expected to have its second reading debate on Friday 4 March 2016. It is not yet published.

UK Borders Control Bill 2015-16; A Bill to make provision to ensure that the United Kingdom has absolute control over the right to prevent non-UK citizens from entering the United Kingdom; to determine the circumstances in which non-UK citizens may be required to leave the United Kingdom; and for connected purposes. This Bill was presented to Parliament on 6 July 2015. This Bill is expected to have its second reading debate on Friday 20 November 2015. It is not yet published.

Foreign National Offenders (Exclusion from the UK) Bill 2015-16; This Bill was presented to Parliament on 29 June 2015. This Bill is expected to have its second reading debate on 11 March 2016.

CONCLUSIONS

On 29 August 2015, the Home Secretary, Theresa May wrote in the Sunday Times, “ I AM not going to beat about the bush. The numbers are far too high. This government has an objective to reduce annual net migration to the tens of thousands — but the latest figures, released on Thursday, show it is three times that level, at 330,000…………” A borderless EU harms everyone but the gangs that sell false dreams.

Having regard to the current European migration crisis and in combination with the   intention to drastically reduce net migration,   it is clear why the UK Government is   extremely reluctant to accept more refugees. The Guardian reported on 2 September 2015 that the Prime Minister stated that the crisis would not be solved simply by Britain taking in more refugees, but rather that the Government considers that in relation to the Middle East,“ the most important thing is to try to bring peace and stability to that part of the world”.

Taking in more refugees is clearly inconsistent with the Government’s policy of increased exclusions, deportation and removals. The Immigration Bill, upon it becoming law may set out the Government’s position and intentions however in practical effect, where the UK Government does not get it right on immigration,  it is debatable as to whether rather than speeding up removals(in light of the mounting legal challenges being generated by the 2014 Act and inevitably to be extended to the   forthcoming legislation)  delay may be the result  necessitating yet further reactionary legislation.