Somalians and Protection:ECHR Gives Great Weight to UK Upper Tribunal ‘s Assessment of Risk On Return To Somalia

Posted on September 27, 2015 by alicemuzira Standard Reply

Somalians seeking to resist return to Somalia may seek to rely on several heads of protection such as upon the Refugee Convention, Article 3 of the ECHR, Humanitarian Protection and any relevant exceptional personal circumstances.

In the Upper Tribunal in MOJ & Ors (Return to Mogadishu) Somalia CG 2014, UKUT 00442(IAC) the issues were whether the current situation in Mogadishu was such as to entitle nationals of Somalia whose home area is Mogadishu or whose proposed area of relocation is Mogadishu to succeed in their claims for refugee status, humanitarian protection status under Article 15(c) or protection against refoulment under Articles 3 or 2 of the ECHR solely on the basis that they are civilians and do not have powerful actors in a position to afford them adequate protection. The Upper Tribunal in MOJ 2014 however did not consider the position of clans(including minority clans/groups) in southern and northern outside of Mogadishu. The Upper Tribunal in their decision sought to narrow the categories of those persons who might be considered at risk on return to Somalia and the European Court of Human Rights, has this month sought to place considerable weight upon the case of MOJ 2014 in concluding that a Somali woman aged 26 would not be at risk on return having regard to Article 3 of the ECHR in the case of R.H v Sweden 4601/14 notified on 10 September 2015.

POSSIBLE HEADS OF CLAIM

(1)Asylum Claim -Majority and Minority Clan Groups:

A person may fear ill- treatment by non- actors on account of a person’s membership of a majority clan or minority group.

The Upper Tribunal in MOJ 2014, however stated at paragraph 77 of their judgement, ” Perhaps good indication of the very real change that has taken place in Mogadishu is that some commentators when referring to a “minority clan” now base that not on ethnicity but the fact of the clan being in a numerical minority in a particular area, despite its status as a majority clan on a national basis. It is clear that there have been very significant population movements in Somalia in recent years “.

The Tribunal in MOJ 2014 held that the significance of clan membership in Mogadishu had changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members. On the basis of MOJ 2014, minority clan/group members are unlikely to face persecution on the basis of their ethnic or social group alone in Mogadishu.

The Home Office however still leave room for consideration of claims based on fear of return based on clan membership in their Country Information and Guidance, South and Central Somalia: Majority Clans and Minority Groups- March 2015. The Guidance clarifies that the four ‘noble’ (majority), clans are the Darod, Hawiye, Isaaq, and Dir, while two further clans, the Digil and Mirifle, (also collectively referred to as Rahannweyn) take an intermediate position between the main clans and the minority groups.

Minority groups are considered to comprise of ethnic and religious minorities and occupational/out-caste groups. The latter are of the same ethnicity as members of the majority clans. Ethnic and religious minorities include the urban coastal communities of the Benadir region(the Reer Hamar, Barawani-also known as Reer Brava or Bravanese-and the Bajuni) and the Bantu. Occupational and out-caste groups include members of the Tumal, Midgan and Yibir. Members of majority clans can be considered minorities where they live in an area mainly populated by other majority clans.

The Home Office Guidance clarifies that while there have been reports of clashes between majority clans, country information does not indicate that there is widespread discrimination of majority clans because of their ethnicity/clan alone. It is therefore unlikely that any Somali belonging to one of the majority clan families( Hawiye, Darood Dir and Isaaq)- or immediate clan groups or associated sub-clans- is able to demonstrate that they have a well founded fear of ill treatment on return on their basis of their clan affiliation alone.

The Guidance also states that country information generally indicates that members of minority groups are likely to face political, social, economic and judicial discrimination, and human rights abuses including harassment and violence, killings and torture, rape, kidnapping for ransoms, and looting of land and property which in some circumstances may amount to persecution, however each case should be considered on its own taking into account a person’s personal circumstances. The Home Office consider that there is existing case-law that considers the position of minority groups and remains relevant to assessing cases for groups particularly those outside Mogadishu, however that caselaw is based on country information up to 2005/2006 and so does not take into account recent changes in the country’s human rights situation and in clan dynamics. The Home Office consider that whether a person from a minority group is at risk of persecution in areas outside of Mogadishu will depend on the minority group to which the person belongs; their ability to obtain protection and/ or support from a dominant clan; the area to which they are returning and their individual circumstances.

The Guidance considers that as regards minority groups who become Internally Displaced Persons(IDP) in any part of south and central Somalia and who have no choice but to live in an IDP camp are likely to be at real risk of persecution on the basis of their social group or ethnic origin and are likely to qualify for asylum. This is because they may face discrimination and various human rights violations including economic exploitation, extortion, forced labour, harassment and forced evictions which amounts to persecution. This particularly applies to single women or a woman who is head of a household who may also be liable to gender-based violence and trafficking.

The Home Office also accept that minority group women without family or clan support or a real prospect of securing access to a livelihood are in general, likely to be at real risk on return and are likely to qualify for asylum. This is because women from minority groups have experienced gender- based violence, rape, domestic violence, robbery, exploitation and economic discrimination. Crimes against women especially amongst women from minority groups are often perpetrated with impunity and women and girls from minority groups and clans suffer a lack of access to justice, due process and clan protection.

The Home Office Guidance also sets out issues in relation to internal relocation. Internal relocation to Mogadishu and other areas of south and central Somalia not controlled by Al Shabab may be a viable option depending on the facts of the case. Relocation to Mogadishu for a person who has no clan or family support, not in receipt of remittances from abroad and who has no real prospect of securing access to a livelihood in the city, is however likely to be unreasonable. Internal relocation to areas controlled by Al Shabab will not generally be viable. Internal relocation to Somaliland and Puntland will only be viable for former residents and members of locally based minority groups.

(2)Asylum Claim – Imputed political opinion- Fear of Forcible recruitment by Al Shabab or Association with Al Shabab:

AMM and others found that on the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in their determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules

The Tribunal in MOJ 2014 however subsequently found in particular, that a claimant will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. The Upper Tribunal found that there had been durable change in the sense that the Al Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. There was no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

(3)Asylum Claim – Women and Gender Based Persecution:

The Home Office Country Information and Guidance , Somalia: Women fearing Gender -Based Harm/Violence , February 2015, accepts that women in Somalia form a particular social group within the meaning of the 1951 UN Refugee Convention. This because they share an immutable( or innate) characteristic – their gender- that cannot be changed, and they form a distinct group in society as evidenced by widespread discrimination in their fundamental rights.

The Upper Tribunal in AMM and Others (conflict; Humanitarian crisis; returnees; FGM) Somalia CG 2011 ,UKUT 000445 (IAC) found the incidence of Female Genital Mutilation(FGM ) in Somalia as universally agreed to be over 90%. The societal requirement for any girl or woman to undergo FGM is strong. In general an uncircumcised, unmarried woman up to the age of 39 will be at real risk of suffering FGM. The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic economic background that is likely to distance from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others(particularly relatives) will at some point inflict FGM on her.

The February 2015 Home Office Guidance clarifies there is generalised and widespread discrimination towards women in Somalia. Sexual and gender- based violence including domestic violence, rape, sexual abuse exploitation and trafficking is widespread and committed with impunity by a range of actors including government security forces, members of armed opposition groups, militias, family and community actors and AMISOM peacekeepers.

The Guidance also states that women and girls in Al- Shabab areas also face serious risks of being abducted and raped by Al- Shabab and forced into marriage with Al – Shabab fighters. They can also be forced to work for All – Shabab as cleaners, cooks and porters. In some cases, girls have been used as suicide bombers as well. Female returnees in particular face threats against the person in IDP camps, where the Somali National Police Force are unable to provide protection, especially those belonging to minority clans. Further, women travelling without male friends or relatives are in general likely to face a real risk of sexual violence as per paragraph 605 of AMM and others. Women who are without family/friends/clan connections or without resources are in general likely to be at risk of sexual and gender based violence on return. Factors to be taken into account include access to family support networks or clan protection and support, age, heath, economic status, family responsibilities, connection with the diaspora and other individual circumstances of the person.

The Home Office Guidance states that FGM is almost universally practised throughout Somalia and a very strong cultural belief persists in its practise.

As regard protection issues, the Guidance states that in south and central Somalia(including Mogadishu) effective system protection is in general unlikely to be available for women fearing sexual or gender based violence. The situation may be otherwise in Somaliland and Puntland where an assessment of whether effective protection is available needs to be considered in relation to the particular circumstances and profile of the person. Internal relocation to Mogadishu to avoid risk from gender based violence may be viable in some cases. Somaliland and Puntland in general only accept back persons who were former residents of those regions and are members of locally based clans or sub-clans. The practise is stated to be declining in Somaliland and Puntland and a woman may be less likely to be at risk of being forced to undergo such a procedure there. The Guidance acknowledges that a woman who demonstrates a real risk or reasonable likelihood of ill-treatment on return to Somalia on account of their gender and who is also able to show that she is unable to secure effective protection or relocate elsewhere in Somalia to escape that risk will qualify for asylum.

(4) Article 3 of the ECHR and Humanitarian Protection:

A claimant may resist removal to Somalia on the basis that there is a general humanitarian or security situation in Somalia so severe as to make removal a breach of Article 3 of the ECHR. Article 3 states, ” No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Removal may give rise to an issue under Article 3 of the ECHR where substantial grounds have been shown for believing that the person concerned if removed would face a real risk of being subjected to treatment contrary to Article 3.

A claim may also be submitted on the basis that the security situation in Somalia presents a real risk which threatens life or person such that removal would be in breach of Article 15(c) of European Council Directive 2004/83/C of 29 April 2004 ( the “Qualification Directive”). Since 9 October 2006, UK legislation and policy on Humanitarian Protection has reflected the subsidiary protection provisions of Articles 15-19 of the Qualification Directive. Subsidiary protection is intended to be complementary and additional to the protection available in the Refugee Protection. It is only if the person does not qualify under the Refugee Convention that an assessment needs to be made of the need for protection firstly under Article 3 of the ECHR and if that is unsuccessful, under Article15(C) of the Qualification Directive, ie claim for Humanitarian Protection.

Humanitarian Protection as set out under paragraph 339C of the Immigration Rules is commonly referred to as ‘subsidiary protection’, and is defined under Article 15 of the Qualification Directive.

Article 2(e) of the Qualification Directive provides;

“For the purposes of this Directive:

………..(e) ‘person eligible for subsidiary protection’ means a third country national…. who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in article 15, … and is unable, or, owing to such risk,unwilling to avail himself of the protection of that country.”

Article 15 provides of the Qualification Directive provides ;

“Serious harm

Serious harm consists of

(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”

European and domestic caselaw has established the interpretation of Article15(C), firstly in the Court of Justice of the European Union, in Elgafaji 2009 EUECJC-465-07, secondly in the Court of Appeal, in QD(Iraq) v SSHD 2009 EWCA Civ 620 and in the summaries of the correct legal position as set out in the Upper Tribunal Country Guidance cases of HM and Others, (Article 15(C) Iraq CG 2012 UKUT 00409 (IAC): AMM and Others(conflict; humanitarian crisis; returnees; FGM) Somalia CG 2011 UKUT 00445(IAC) and AK( Article 15(c) Afghanistan CG (2012) UKUT 163).

On assessing whether the general security situation may breach Article 15c, the case-law of QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, held at parpgah 36 of the judgement that whilst there is no need for an internal armed conflict to be ‘exceptional’ in its nature for 15c to be breached, what is required is an intensity of indiscriminate violence ‘which will self-evidently not characterise every such situation and which is great enough to meet the test set out in Elgafagi.’

QD Iraq summarises at paragraph 40 of its judgement:

“We would put the critical question, in the light of the Directive, of the ECJ’s recent jurisprudence and of our own reasoning, in this way:

Is there in Iraq or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant such as QD or AH would, solely by being present there, face a real risk which threatens his life or person?”.

The two questions referred to the ECJ in Elgafaji 2009 EUECJC-465-07 by the Dutch Raad van State (council of state) were these:

“1. Is Article 15(c) of [the Directive] to be interpreted as offering protection only in a situation in which Article 3 of the [ECHR], as interpreted in the case-law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?

If Article 15(c) of the Directive, in comparison with Article 3 of the [ECHR], offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?”

The Court held, that “it is article 15(b) of the Directive which corresponds, in essence, to article 3 of the ECHR”. It continued (§28):

“By contrast, article 15(c) of the Directive is a provision, the content of which is different from that of article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR.”

The Court went on to address the question whether article 15(c) required proof of a threat directed at the individual applicant, and, if not, what was the correct test. It said:

“31 In order to reply to those questions, it is appropriate to compare the three types of ‘serious harm’ defined in Article 15 of the Directive, which constitute the qualification for

subsidiary protection, where, in accordance with Article 2(e) of the Directive, substantial grounds have been shown for believing that the applicant faces ‘a real risk of [such] harm’ if returned to the relevant country.

32 In that regard, it must be noted that the terms ‘death penalty’, ‘execution’ and ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.

33 By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm.

34 Reference is made, more generally, to a ‘threat … to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’. Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.

35 In that context, the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive.

36 That interpretation, which is likely to ensure that Article 15(c) of the Directive has its own field of application, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.

37 While that recital implies that the objective finding alone of a risk linked to the general situation in a country is not, as a rule, sufficient to establish that the conditions set out in Article 15(c) of the Directive have been met in respect of a specific person, its wording nevertheless allows – by the use of the word ‘normally’ – for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.

38 The exceptional nature of that situation is also confirmed by the fact that the relevant protection is subsidiary, and by the broad logic of Article 15 of the Directive, as the harm defined in paragraphs (a) and (b) of that article requires a clear degree of individualisation. While it is admittedly true that collective factors play a significant role in the application of Article 15(c) of the Directive, in that the person concerned belongs, like other people, to a circle of potential victims of indiscriminate violence in situations of international or internal armed conflict, it is nevertheless the case that that provision must be subject to a coherent interpretation in relation to the other two situations referred to in Article 15 of the Directive and must, therefore, be interpreted by close reference to that individualisation.

39 In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.

40 Moreover, it should be added that, in the individual assessment of an application for subsidiary protection, under Article 4(3) of the Directive, the following may be taken into account:

– the geographical scope of the situation of indiscriminate violence and the actual destination of the applicant in the event that he is returned to the relevant country, as is clear from

Article 8(1) of the Directive, and

– the existence, if any, of a serious indication of real risk, such as that referred to in Article 4(4) of the Directive, an indication in the light of which the level of indiscriminate violence required for eligibility for subsidiary protection may be lower.…….

43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that:

– the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;

– the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place –- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred — reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.

44 It should also, lastly, be added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, arising from the foregoing paragraphs is fully ompatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR (see, inter alia, NA. v. The United Kingdom, § 115 to 117 and the case-law cited).”

SOMALIA – DOMESTIC CASELAW ON ARTICLE 3 OF THE ECHR AND HUMANITARIAN PROTECTION

HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022:
Applying the definitions drawn from the Tadic jurisdictional judgment, the Upper Tribunal in HH and others found that for the purposes of paragraph 339C of the Immigration Rules and the Qualification Directive, on the evidence before them, an internal armed conflict exists in Mogadishu. The zone of conflict was confined to the city and international humanitarian law applied to the area controlled by the combatants, which comprised the city, its immediate environs and the TFG/Ethiopian supply base of Baidoa. The Upper Tribunal also decided that a person was not at real risk of serious harm as defined in paragraph 339C by reason only of his or her presence in that zone or area. Neither the TFG/Ethiopians nor the Union of Islamic Courts and its associates were targeting clans or groups for serious harm. Whilst both sides in the conflict had acted from time to time in such a way as to cause harm to civilians, they were not in general engaging in indiscriminate violence. Clan support networks in Mogadishu, though strained, had not collapsed. A person from a majority clan or whose background disclosed a significant degree of assimilation with or acceptance by a majority clan would in general be able to rely on that clan for support and assistance, including at times of displacement as a result of security operations, etc. Majority clans continued to have access to arms, albeit that their militias no longer controlled the city. The Upper Tribunal found that a member of a minority clan or group who had no identifiable home area where majority clan support could be found would in general be at real risk of serious harm of being targeted by criminal elements, both in any area of former residence and in the event (which is reasonably likely) of being displaced. That risk was directly attributable to the person’s ethnicity and was a sufficient differential feature to engage the Refugee Convention, as well as article 3 of the ECHR and paragraph 339C/article 15(c) of the Qualification Directive. The evidence disclosed no other relevant differentiating feature for the purposes of those Conventions and the Directive.

The Upper Tribunal considered that the evidence suggested that certain minority groups may be accepted by the majority clan of the area in question, so as to be able to call on protection from that clan. On the current evidence, it was therefore not appropriate to assume that a finding of minority group status in southern Somalia was itself sufficient to entitle a person to international protection, particularly where a person’s credibility was otherwise lacking.

AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091:

The Upper Tribunal in AM & AM stated that when considering the question of whether a person is eligible for refugee protection on the basis of exposure to armed conflict, Adan [1998] 2 WLR 703 did not permit decision makers to reject their claims per se. A person may be able to succeed in a claim to protection based on poor socio-economic or dire humanitarian living conditions under the Refugee Convention or Article 15 of the Qualification Directive or Article 3, although to succeed on this basis alone the circumstances would have to be extremely unusual. In the context of Article 15(c) the serious and individual threat involved does not have to be a direct effect of the indiscriminate violence; it is sufficient if the latter is an operative cause. The Upper Tribunal decided that the Opinion of the Advocate General in Elgafaji, 9 September 2008 in Case C-465/07 did not afford an adequately reasoned basis for departing from the guidance given on the law in the reported cases of the Tribunal on Article 15(c), namely HH and others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 and KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023. Before the Tribunal will take seriously a challenge to the historic validity of a Tribunal country guidance case, it would need submissions which seek to adduce all relevant evidence, for or against, the proposed different view. The historic validity of the guidance given in HH and Others was confirmed. The Upper Tribunal in AM & AM however stated that as regards the continuing validity of the guidance given in HH, the Tribunal considered that there have been significant changes in the situation in central and southern Somalia, such that the country guidance in that case was superseded to the following extent:

There was now an internal armed conflict within the meaning of international humanitarian law (IHL) and Article 15(c) of the Refugee Qualification Directive throughout central and southern Somalia, not just in and around Mogadishu. The armed conflict taking place in Mogadishu currently amounted to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu was no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu;

Assessment of the extent to which internally displaced persons (IDPs) face greater or lesser hardships, at least outside Mogadishu (where security considerations are particularly grave,) will vary significantly depending on a number of factors;

For those whose home area is not Mogadishu, they will not in general be able to show a real risk of persecution or serious harm or ill treatment simply on the basis that they are a civilian or even a civilian internally displaced person (IDP) and from such and such a home area, albeit much will depend on the precise state of the background evidence relating to their home area at the date of decision or hearing;

As regards internal relocation, whether those whose home area is Mogadishu (or any other part of central and southern Somalia) would be able to relocate in safety and without undue hardship would depend on the evidence as to the general circumstances in the relevant parts of central and southern Somalia and the personal circumstances of the applicant. Whether or not it was likely that relocation would mean that they have to live for a substantial period in an IDP camp, would be an important but not necessarily a decisive factor; Where a particular route and method of return is implicit in an immigration decision it is within the jurisdiction of the Tribunal to deal with issues of en route safety on return: see AG (Somalia) [2006] EWCA Civ 1342. But in the context of Somali appeals currently, the method of return is far too uncertain and so any opinion the Tribunal expresses on such issues can only be given on an obiter basis.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC):

On the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as “extreme” as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would “play the game”, by adhering to Al-Shabab’s rules.

Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remained in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.

The armed conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect of any person in that city, regardless of circumstances. The humanitarian crisis in southern and central Somalia has led to a declaration of famine in IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in such a camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability.

Except as regards the issue of female genital mutilation (FGM), it is unlikely that a proposed return to Mogadishu at the present time will raise Refugee Convention issues.

Outside Mogadishu, the fighting in southern and central Somalia is both sporadic and localised and is not such as to place every civilian in that part of the country at real risk of Article 15(c) harm. In individual cases, it will be necessary to establish where a person comes from and what the background information says is the present position in that place. If fighting is going on, that will have to be taken into account in deciding whether Article 15(c) is applicable. There is, likewise, no generalised current risk of Article 3 harm as a result of armed conflict. In general, a returnee with no recent experience of living in Somalia will be at real risk of being subjected to treatment proscribed by Article 3 in an Al-Shabab controlled area. “No recent experience” means that the person concerned left Somalia before the rise of Al-Shabab in 2008. Even if a person has such experience, however, he or she will still be returning from the United Kingdom, with all that is likely to entail, so far as Al-Shabab perceptions are concerned, but he or she will be less likely to be readily identifiable as a returnee. Even if he or she were to be so identified, the evidence may point to the person having struck up some form of accommodation with Al-Shabab, whilst living under their rule. On the other hand, although having family in the Al-Shabab area of return may alleviate the risk, the rotating nature of Al-Shabab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.

Al-Shabab’s reasons for imposing its requirements and restrictions, such as regarding manner of dress and spending of leisure time, are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as coming from the West. Accordingly, those at real risk of such Article 3 ill-treatment from Al-Shabab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion. Although those with recent experience of living under Al-Shabab may be able to “play the game”, in the sense of conforming with Al-Shabab’s requirements and avoiding suspicion of apostasy, the extreme nature of the consequences facing anyone who might wish to refuse to conform (despite an ability to do so) is such as to attract the principle in RT (Zimbabwe). The result is that such people will also in general be at real risk of persecution by Al-Shabab for a Refugee Convention reason. The same considerations apply to those who are reasonably likely to have to pass through Al-Shabab areas.

For someone at real risk in a home area in southern or central Somalia, an internal relocation alternative to Mogadishu is in general unlikely to be available, given the risk of indiscriminate violence in the city, together with the present humanitarian situation. Relocation to an IDP camp in the Afgoye Corridor will, as a general matter, likewise be unreasonable, unless there is evidence that the person concerned would be able to achieve the lifestyle of those better-off inhabitants of the Afgoye Corridor settlements.

Internal relocation to an area controlled by Al-Shabab is not feasible for a person who has had no history of living under Al-Shabab in that area (and is in general unlikely to be a reasonable proposition for someone who has had such a history). Internal relocation to an area not controlled by Al-Shabab is in general unlikely to be an option, if the place of proposed relocation is stricken by famine or near famine.

Within the context of these findings, family and/or clan connections may have an important part to play in determining the reasonableness of a proposed place of relocation. The importance of these connections is likely to grow, as the nature of the present humanitarian crisis diminishes and if Al-Shabab continues to lose territory.

Travel by land across southern and central Somalia to a home area or proposed place of relocation is an issue that falls to be addressed in the course of determining claims to international protection. Such travel may well, in general, pose real risks of serious harm, not only from Al-Shabab checkpoints but also as a result of the present famine conditions. Women travelling without male friends or relatives are in general likely to face a real risk of sexual violence.

An issue that may have implications for future Somali appeals is the availability of air travel within Somalia (including to Somaliland). Flying into Mogadishu International Airport is sufficiently safe. There is no evidence to indicate a real risk to commercial aircraft flying to other airports in Somalia.

The Upper Tribunal stated that the present appeals were not designed to be vehicles for giving country guidance on the position within Somaliland or Puntland. There is no evidential basis for departing from the conclusion in NM and others, that Somaliland and Puntland in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. In the context of Somali immigration to the United Kingdom, there is a close connection with Somaliland.

A person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.

The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is the “pharaonic”, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.

The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.

MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC):

Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the ECHR or Article 15(c) of the Qualification Directive. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time of being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country. There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in AMM. The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk. It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so. There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.

A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.

If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:

circumstances in Mogadishu before departure;
length of absence from Mogadishu;
family or clan associations to call upon in Mogadishu;
access to financial resources;
prospects of securing a livelihood, whether that be employment or self employment;
availability of remittances from abroad;
means of support during the time spent in the United Kingdom;
why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms. The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.

SOMALIA -RELEVANT ECHR CASELAW ON ARTICLE 3 OF THE ECHR AND HUMANITARIAN PROTECTION

Case of Sufi and Elmi v United Kingdom (Applications nos. 8319/07 and 11449/07) – 28 June 2011- found in summary that:

“248. The Court considers that the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital. In reaching this conclusion the Court has had regard to the indiscriminate bombardments and military offensives carried out by all parties to the conflict, the unacceptable number of civilian casualties, the substantial number of persons displaced within and from the city, and the unpredictable and widespread nature of the conflict.

“250.Consequently, the Court concludes that the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to “powerful actors”, would be at real risk of treatment prohibited by Article 3 of the Convention”.

Case of K.A.B. v. Sweden (Application no. 886/11) – 5 September 2013 found in summary that:

“91. The Court is aware that the human rights and security situation in Mogadishu is serious and fragile and in many ways unpredictable. However, in the light of the above, in particular the fact that al-Shabaab is no longer in power in the city, there is no front-line fighting or shelling any longer and the number of civilian casualties has gone down, it finds that the available country information does not indicate that the situation is, at present, of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3 of the Convention. Therefore, the Court has to establish whether the applicant’s personal situation is such that his return to Somalia would contravene the relevant provisions of the Convention”.

Case of R.H. v. Sweden (application no. 4601/14)- 10 September 2015:

The case concerned the removal of a Somali asylum-seeker. The applicant, R.H., was a Somali national who was born in 1988. She applied for asylum in Sweden in December 2011, claiming that she had just arrived in the country. The Migration Board and migration courts examined her situation and eventually rejected her asylum application in June 2013 and ordered her deportation to Somalia. Those instances found that the applicant’s statements to the authorities lacked credibility: notably, she had already filed asylum applications in Italy and the Netherlands before arriving in Sweden in 2007, staying there illegally until contacting the migration authorities in 2011; and, initially claiming that she had left Somalia because of the war, had then changed her story to allege that she had fled Somalia with a secret boyfriend to escape a forced marriage to an older man and feared ill-treatment by her family on her return, particularly by her uncles who had already severely beaten her in 2004 for trying to escape. The applicant subsequently submitted a petition to have the enforcement of her deportation order stopped, claiming that her uncles had joined al-Shabaab, a jihadist terrorist group based in Somalia, forcing her brother to also join the group and killing her sister. The Migration Board rejected her petition in September 2013.

The applicant’s deportation was stayed in January 2014 on the basis of an interim measure granted by the European Court of Human Rights under Rule 39 of its Rules of Court, which indicated to the Swedish Government that the applicant should not be expelled to Somalia whilst the Court was considering the case.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, R.H. alleged that, if removed from Sweden to Somalia, she would face a real risk of either being killed by her uncles for refusing to agree to a forced marriage before fleeing Somalia or forced to marry a man against her will again upon her return. She further claimed that the general situation in Somalia for women was very difficult, in particular for those – such as herself – who lacked a male network and were therefore all the more vulnerable.

The Court in R.H considered that:

“67. It is thus clear that the general security situation in Mogadishu remains serious and fragile. The available sources do not, however, indicate that the situation has deteriorated since September 2013. For example, in the Danish/Norwegian report of March 2014 (see paragraph 25 above), the UNDSS and an international NGO were reported as saying that there had been security improvements since April 2013. Also the conclusions drawn by the United Kingdom Upper Tribunal in MOJ & Ors (paragraphs 31-32) suggest that there has been an improvement. Given the high volume of oral and written evidence examined by the Tribunal, the Court considers that its assessment must be accorded great weight. Among other things, the Tribunal concluded that there had been durable change in the sense that the al-Shabaab withdrawal from Mogadishu was complete and there was no real prospect of a re-established presence within the city. The indiscriminate bombardments and military offensives mentioned by the Court in its 2011 judgment in Sufi and Elmi v. the United Kindom had been replaced by al- Shabaab attacks against carefully selected targets – politicians, police officers, government officials and those associated with non-governmental and international organisations – that did not include “ordinary civilians” or diaspora returnees. The Tribunal further considered that the areas and establishments at which these attacks were aimed were largely predictable and could be reasonably avoided by the citizens. Moreover, while the statistical information concerning casualty levels was deficient and unreliable, the cessation of confrontational warfare in Mogadishu and the changed type of attacks by al-Shabaab were found to have reduced the level of civilian casualties since 2011. The Tribunal also had regard to the “huge” number of people returning to the city, where new economic opportunities were available

Consequently, having regard to the information available concerning the present situation in Mogadishu, the Court finds that the assessment made in K.A.B. v. Sweden (cited above, §§ 87-91) is still valid. Thus, there is no indication that the situation is of such a nature as to place everyone who is present in the city at a real risk of treatment contrary to Article 3. The Court must therefore establish whether the applicant’s personal circumstances are such that her return to Mogadishu would contravene that provision.
The various reports attest to the difficult situation of women in Somalia, including Mogadishu. The UNHCR has identified women and girls as a particular risk group (see paragraph 37 above). While there has been legislative progress in the form of the development of a sexual offences bill, there are several concordant reports about serious and widespread sexual and gender-based violence in the country (paragraphs 27,30, 33-34 and 38). Not only civilians but also members of SNAF, AMISOM and other armed forces are perpetrators of abuse against women. Women are unable to get protection from the police and the crimes are often committed with impunity, as the authorities are unable or unwilling to investigate and prosecute reported perpetrators. It is also clear that women are generally discriminated against in Somali society and that they hold a subordinate position to men. As shown by the report of the Swedish Migration Board, women are reliant on men in many aspects of societal life (paragraph 30). In the Court’s view, it may be concluded that a single woman returning to Mogadishu without access to protection from a male network would face a real risk of living in conditions constituting inhuman or degrading treatment under Article 3 of the Convention.
In sum, the Court considers that there are significant inconsistencies in the applicant’s submissions. The claims concerning her personal experiences and the dangers facing her upon return have not been made plausible. Accordingly, there is no basis for finding that she would return to Mogadishu as a lone woman with the risks that such a situation entails. In this connection, the Court notes that the applicant was informed of the death of her father in 2010 and her mother in 2011, indicating that she has retained contacts in Mogadishu. Moreover, she has family living in the city, including a brother and uncles. She must therefore be considered to have access to both family support and a male protection network. Furthermore, it has not been shown that the applicant would have to resort to living in a camp for refugees and IDPs.
Consequently, while not overlooking the difficult situation of women in Somalia, including Mogadishu, the Court cannot find, in this particular case, that the applicant would face a real risk of treatment contrary to Article 3 of the Convention if returned to that city. Thus, her deportation to Mogadishu would not involve a violation of that provision”.

There was thus held to be no violation of Article 3 in the event of R.H.’s removal to Mogadishu in Somalia. Interim measure (Rule 39 of the Rules of Court) – not to deport R.H. to remain in force until judgment became final or until further order.

CONSIDERATIONS AND CONCLUSIONS

Having regard to the outcome in R.H, the ECHR in effect agreeing with the reasoning and conclusion of the Upper Tribunal in MOJ 2014, and with the ECHR also having had regard to very recent background evidence as regards the security situation in Somalia, this gives little hope currently to increased successes in protection claims raised by Somalians in the UK. The positives however practically for Somalians in that country are that the security situation has improved and it has been reiterated that there is an “ economic boom” benefiting some and providing opportunities.

It is also important to note that the Upper Tribunal in MOJ 2014 made it clear that the country guidance issues addressed in their determination were not identical to those engaged with by the Tribunal in AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC). Therefore, where country guidance has been given by the Tribunal in AMM and others in respect of issues not addressed MOJ 2014 then the guidance provided by AMM and others continues to have effect.

Despite the conclusions in MOJ 2014 and R.H generally on Article 3 and humanitarian protection, there can in fact be viability of some claims capable of advancement for those that fall into a “carefully selected target” group- such claims appear however to be confined to those with some high profile making them of particular adverse interest to Al Shabab. A minority group member who becomes an internally displaced person in any part of south and central Somali with no choice but to live in an IDP camp ; a minority group woman without family or clan support; a woman at risk of gender based persecution such as FGM and those whose personal circumstances are such that return would put them at risk can also still put forward a claim for protection.

Having regard to the case and outcome in R.H, it is important however that claimants be regarded as credible overall in order for there to be an acceptance of the factual accounts of those falling in the risk categories otherwise a claim may fall at the first hurdle.

Deportation of EEA Nationals: Tribunal Judges Required to Stop Giving Substantial Weight to Prospects of Rehabilitation

Posted on September 20, 2015 by alicemuzira Standard Reply

Having regard to the several initial successful outcomes in the First Tier Tribunal and the Upper Tier Tribunal itself in the cases of Dumliauskas and MC, the Court of Appeal earlier this year and now recently the Upper Tribunal, by setting aside those decisions, have sought to make it clear that substantial focus on prospects of rehabilitation in EEA deportation appeals almost to the exclusion of other factors in considering proportionality of deportation should now be a thing of the past. Taking into account the history of these cases, it is apparent that where in future Tribunal Judges seek to allow EEA appeals without due regard to the re-cast new Guidance, then on the basis of that guidance the Secretary of State will seek to challenge such decisions and just might be successful.

Although the guidance on rehabilitative issues are of relevant consideration in future EEA deportation appeals, it must be noted that as Regulation 24AA of the 2006 EEA Regulations has already kicked in, on this basis, it is very questionable, unless an interim order can be obtained, whether many EEA nationals subject to deportation will have the opportunity such as that given to the appellants in MC and Dumliauskas to be still in the UK whilst their appeals are being heard. Regulation 24AA applies to a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined and to a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK. An appeal against a deportation decision under regulation 19(3)(b) of the 2006 EEA Regulations no longer suspends removal proceedings, except where the Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined or where the person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal. The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK, rather, by amending Regulation 29 of the EEA Regulations, it removes the suspensive effect of that appeal. So, whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.

Considerations of rehabilitation have been narrowed as per the new guidance and on this basis in addition to the effect of Regulation 24AA certification it is clear that so far matters are neatly going the UK Government’s way. When the Immigration Bill 2015 was published on 17 September 2015, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response via a published Factsheet was, ”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. There appears to be no clarification that those 288 EEA nationals that had lodged an appeal abroad had been successful in their deportation appeals following removal.

It is important to note and have regard to the fact that both parties of “ Essa” principles or criteria are three cases all relating to the same individual:

Essa, R (on the application of) vUpper Tribunal (Immigration & Asylum Chamber) & Anor [2012 EWHC 1533 (QB), 1 June 2012);

Essa, R (on the application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor [2012] EWCA Civ 1718 (21 December 2012); and

Daha Essa v Secretary of State for the Home Department [2013] UKUT 316 (IAC) 3 June 2013.

All three judgements are referred to in both Dumliauskas and MC.

THE PARENT DIRECTIVE- RELEVANT ARTICLES AND RECITALS

The relevant provisions in Directive 2004/38/EC are :

Recital (23
Recital (24)
Article 16
Article 27
Article 28

RELEVANT DOMESTIC LAW

The relevant Regulations as per The Immigration (European Economic Area) Regulations 2006, 2006 No. 1003, are:

Regulation 19
Regulation 21
Regulation 24

THE RELEVANT CASELAW

Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC):

The Tribunal stated that for any deportation of an EEA national or family member of such national to be justified on public good grounds (irrespective of whether permanent residence has been achieved) the claimant must represent a present threat to public policy. The fact of a criminal conviction is not enough. The Tribunal considered that it was not permissible in an EEA case to deport a claimant on the basis of criminal offending simply to deter others. This tended to mean, in case of criminal conduct short of the most serious threats to the public safety of the state, that a candidate for EEA deportation must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending. In such a case, if there is acceptable evidence of rehabilitation, the prospects of future rehabilitation do not enter the balance, save possibly as future protective factors to ensure that the rehabilitation remains durable.

The Tribunal stated that it was only where rehabilitation is incomplete or uncertain that future prospects may play a role in the overall assessment. The Tribunal took its guidance from the Court of Justice in Tskouridis and the Court of Appeal in Essa, remitting the matter to the Upper Tribunal. The Tribunal noted that it was in the interests of the citizen, the host state and the Union itself for an offender to cease to offend. This is most likely to be the case with young offenders who commit a disproportionate number of offences, but many of whom will stop offending as they mature and comparatively few of whom go on to become hardened criminals and persistent recidivist offenders. The Tribunal stated that it could exclude consideration of offenders beneath the age of 18 as EEA law will prevent their deportation save in the unusual event that it is in their own interest (Article 28 (3) (b) of the Citizens Directive).

The Tribunal considered that if the very factors that contribute to the EEA national’s integration that assist in rehabilitation of such offenders (family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like) will assist in the completion of a process of rehabilitation, then that can be a substantial factor in the balance. If the claimant cannot constitute a present threat when rehabilitated, and is well-advanced in rehabilitation in a host state where there is a substantial degree of integration, it may well very well be disproportionate to proceed to deportation.

The Tribunal considered that at the other end of the scale, if there are no reasonable prospects of rehabilitation, the claimant is a present threat and is likely to remain so for the indefinite future, they could not see how the prospects of rehabilitation could constitute a significant factor in the balance. Thus recidivist offenders, career criminals, adult offenders who have failed to engage with treatment programmes, claimants with impulses to commit sexual or violent offences and the like may well fall into this category.

Secretary of State v Dumliauskas [2015] EWCA Civ 145:

There were three cases before the Court of Appeal. Each of the EEA nationals was convicted of crimes for which prison sentences were imposed. In each case, the Secretary of State was of the opinion that their conduct did “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” sufficient to justify his expulsion. The Upper Tribunal in each case came to the same conclusion, and in one of the cases (of LW) was further satisfied that the requirement of serious grounds of public policy or public security was satisfied, but rejected the Secretary of State’s case on the ground that, having regard to the better prospects of the rehabilitation of the EEA national in question if he remained in this country, it would be disproportionate to expel him.

AD was a citizen of Lithuania. He had come to the UK in 1998. In summary, as noted by the First Tier Tribunal , whilst in the United Kingdom, the EEA national amassed a criminal record comprising one offence against the person, twelve theft and kindred offences, one offence relating to police, courts, prisons, one drugs offence, 6 firearms and offensive weapons offences. On 8 June 2010 he was convicted of robbery and sentenced to three and a half years’ imprisonment concurrent with 2 counts of theft in respect of going equipped to steal. AD had become addicted to heroin. His offending was connected with his addiction: essentially, he said that he committed his offences to obtain money for drugs. Because of the risk of his relapse, the Tribunal found that his conduct represented a present threat. Accordingly, the precondition for his removal under Art 27.2 and Regulation 19(3) was satisfied. In these circumstances, the Secretary of State was entitled to remove AD provided she satisfied the test of proportionality. On this, the First-tier Tribunal was satisfied that he was genuine in his determination to rehabilitate and had aspects of his physical medical condition and the desire to spend time with his grandson, as factors encouraging rehabilitation. There were considered to be reasonable prospects of believing that the prospects of rehabilitation of the EEA national in the United Kingdom were substantial. No evidence had been put before the Tribunal of the prospects of rehabilitation in Lithuania. On this basis, the Tribunal found that the Secretary of State’s decision to remove AD did not comply with the requirement of proportionality, and it allowed his appeal. The Secretary of State appealed to the Upper Tribunal. In her application for permission to appeal, the Secretary of State contended that the relative prospects of rehabilitation are irrelevant to the assessment of proportionality in the case of someone who does not have the permanent right of residence under the Regulations and the Directive. She also contended that the First-tier Tribunal had erred in law in placing manifestly undue weight on the relative prospects of rehabilitation, and that the Tribunal had wrongly placed an onus of proof on the Secretary of State as to the availability of support for AD in Lithuania. The Upper Tribunal held that the relative prospects of rehabilitation in the UK and in Lithuania were a factor relevant to the assessment of proportionality; accordingly the First-tier Tribunal had not erred in taking it into account and upheld the First Tier Tribunal decision.

ME had Dutch nationality. He stated that he had come to the UK in 2002. He had a wife and children here, but he was separated from his wife. He suffered from schizophrenia and at the date of the First-tier Tribunal’s determination, he was detained in a mental hospital. In March 2010 he was convicted of arson (causing damage to property by fire and being reckless as to the danger to the life of others). The substance of the decision of the First-tier Tribunal was observed to be that the appeal had been argued before them on the basis that the EEA national was someone who should be allowed to remain in the United Kingdom subject to the requirements of the mental healthcare professionals looking after him and should he do so this would result in a low risk of harm to others. The First Tier Tribunal was unable to accept this and consequently while the Secretary of State’s decision would interfere with his family life in the United Kingdom, his removal was justified on protection grounds. Accordingly, the First-tier Tribunal dismissed ME’s appeal against the Secretary of State’s decision to remove him. ME appealed to the Upper Tribunal. The Upper Tribunal noted that the EEA national had clearly been in the United Kingdom for more than five years. It had been found that he did not meet the 10 year residence requirement necessitating the consideration of imperative grounds. However in the Upper Tribunal’s judgement both the time that he has spent in the United Kingdom and the history of his residence here justified the consideration of rehabilitation as a factor in the proportionality balance when considering removal. The Upper Tribunal concluded that the question of whether the EEA national’s continued rehabilitation is best served in the United Kingdom or elsewhere was comparative one. In this respect the evidence showed that the EEA national was being treated in a rehabilitative environment in the United Kingdom and had been so treated in the same establishment for the last 17 months. The Upper Tribunal were satisfied that he was making progress. The prospects of rehabilitation in the Netherlands were more difficult to ascertain. Expert evidence was of the view that even if the Dutch authorities offer equivalent medical treatment the EEA national’s rehabilitation was more likely to be successful in the UK because of his established relationship with the mental health team and his family support.

In the Upper Tribunal’s judgment the nature of the rehabilitative treatment that the EEA national would receive in the Netherlands was at best uncertain whereas the rehabilitative treatment that he was receiving in the United Kingdom was known, long term, continuing and progressing. The Upper Tribunal ‘s judgment was that the prospects of the EEA national’s rehabilitation were a matter that needed to be considered in the proportionality balance. It was considered that those prospects of not of themselves determinative but as a factor in the balance in the case of the case they weighed very heavily indeed as the case concerned an Appellant with no history of offending apart from the index offence but with a long history of mental health issues. It was therefore only by an examination of his psychiatric rehabilitation that it was possible to view his propensity to re-offend because there was no suggestion, either from the Secretary of State or otherwise, that any other factors were in play. In the Upper Tribunal’s judgement the evidence that was before them showed quite clearly that the EEA national’s psychiatric rehabilitation was continuing, progressing and controlled in a secure environment and further that it was being benefited by the proximity and support of close family members. The Upper Tribunal could not be satisfied that this rehabilitation would continue were the EEA national to be deported to the Netherlands and further they were satisfied on the unequivocal expert medical evidence that even if mental health treatment was available to the EEA national his deportation was likely to have a significant detrimental effect on his mental health. It was the Upper Tribunal’s judgment that in the particular circumstances of the case the deportation of the EEA national was not a proportionate response within the terms of regulations 21(5) and 21(6) of the Immigration (European Economic area) Regulations 2006 and therefore the Upper Tribunal re-made the decision of the First-tier Tribunal and allowed the appeal.

LW was a citizen of Poland. In September 2006 he was convicted of driving without due care and attention: his driving had caused the death of a pedestrian, but at that date there was no offence of causing death by careless driving. In May 2007 he was convicted of offences of theft and failure to surrender to bail and was sentenced to a community order. In Feb 2008 he was convicted of fraudulent use of a vehicle excise licence and other road traffic matters; he was fined and disqualified from driving. More seriously, in Dec 2011 he pleaded guilty to 2 offences of robbery; he was sentenced to 32 months imprisonment on both, to run concurrently. This led to the Secretary of State’s decision to remove him. LW did not appear at the First-tier Tribunal hearing of his appeal in Oct 2012. The Tribunal dismissed his appeal, holding that he had not established that he had a permanent right of residence in this country, he remained a risk to the public in the form of violence to the person, had not addressed his offending behaviour, and sought to minimise his criminality. The Upper Tribunal granted LW a further appeal, on the ground that the First-tier Tribunal had failed to consider the relative prospects of rehabilitation. At his hearing before the Upper Tribunal, the Tribunal cited paragraphs 3, 4 and 5 of the decision of the Upper Tribunal in Essa (EEA): rehabilitation/integration [2013] UKUT 00316 (IAC), and concluded that there was evidence of attempts at rehabilitation by voluntarily not using alcohol. If such work continued with the support of family and the friends who attended court and have provided written statements, the prospects for the appellant not reoffending as a result of alcohol related issues must be positive. It was noted that the key element to the success of his rehabilitation appeared not to be the intention of professionals but rather the integration into the peer, family, and friendship group in the UK. The Upper Tribunal found that the case fell within the class of those who at the time of the determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation. It was noted that such prospects were a substantial relevant factor in the proportionality balance as to whether deportation is justified. It was considered clear that LW was well advanced in rehabilitation and that there was a substantial degree of integration. The Tribunal found that on the facts of the case it was disproportionate to proceed to deportation when considering the Regulation 21 facts with particular reference to regulation 21 (5) (a) and (6). It was considered that the future was up to LW. If he reoffended his claim to have rehabilitated would be shown to be false and his deportation to Poland might then succeed. It was noted that if he wished to remain in the UK he needed to continue to abstain from alcohol and steroids or any other substance which might result in aggression and loss of control, behave as a model citizen, and drive with the degree of care expected from any road user.

In each of the 3 cases, the Secretary of State appealed to the Court of Appeal on the ground that the relative prospects of rehabilitation are irrelevant in the case of someone who has no permanent right of residence in this country. It was also contended that the Tribunal gave manifestly excessive weight to rehabilitation, and that the evidence before the Tribunal did not justify its finding that rehabilitation was more likely in this country rather than the country of nationality.

The Court of Appeal in its judgement in Dumliauskas agreed entirely with what was said by Maurice Kay LJ, in the Court of Appeal in R (Daha Essa) v UTIAC [2012] EWCA Civ 1718:

“16. Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General, in the passage which I set out in paragraph 8, above, opined that it is incumbent upon a primary decision-maker who makes an expulsion decision “to state precisely in what way that decision does not prejudice the offender’s rehabilitation”. Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket”.

The Court of Appeal in Dumliauskas further noted the judgment of the Court of Appeal in Essa (2012 ) appeal made it clear that the relative prospects of rehabilitation are a factor to be taken into account. It was noted that with Essa in the first instance, Lang J had said:

“In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country …”

The Court noted in Dumliauskas that Maurice Kay had said that he entirely agreed with Lang J’s interpretation of Tsakouridis.

The Court of Appeal in Dumliauskas further referred to the prospects of rehabilitation being considered by the Upper Tribunal, in Secretary of State for the Home Department v Vasconcelos [2013] UKUT 378 (IAC). The Court of Appeal agreed entirely with paragraph 80 of that decision which stated that, “His future prospects of rehabilitation are uncertain and whatever they are cannot be a weighty factor in the balance given the absence of integration and a right of permanent residence” .

The Court of Appeal in Dumliauskas further noted that the judgment of the Court of Justice in Tsakouridis was considered by the Upper Tribunal, in Essa v Secretary of State for the Home Department [2013] UKUT 316 (IAC) and that the Tribunal concluded that the prospects of rehabilitation in the offender’s home State are relevant to the decision to deport only if he has acquired a permanent right of residence. The Court of Appeal in Dumliauskas whilst indicating sympathy with this approach, was unable to agree with it. The Court could think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. It was considered that once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned. The Court of Appeal considered that what was however affected by length of legal residence (in the sense used in Art 16.1 of the Parent Directive ) was the weight to be given to the respective prospects of rehabilitation. In addition, it seemed to the Court of Appeal that the decision of the Upper Tribunal in Daha Essa (2013) was inconsistent with what was said by Maurice Kay LJ in Daha Essa (2012).

At paragraph 47 of its judgement, the Court of Appeal in Dumliauskas also had consideration to the following:

“Lastly, I refer to what my Lord Jackson LJ said in SE Zimbabwe v Secretary of State for the Home Department [2014] EWCA Civ 256 [2014] Imm AR 4:

It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE’s good progress to date in rehabilitation. The tribunal treated that as a factor in SE’s favour.
The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration) [2013] UKUT 316 (IAC). This was a decision concerning EU citizens who committed offences and were being considered for deportation. Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend. Accordingly, if the offender’s rehabilitation is incomplete, it is relevant to consider the offender’s prospects of future rehabilitation (a) if he is deported to his home state and (b) if he remains in the host state.
I agree with that analysis. The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime.
What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national. I agree with that proposition.
SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.
From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:

“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.”

In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life”.

The Court of Appeal in Dumliauskas was unable to accept the Secretary of State’s submission that the prospects of rehabilitation are irrelevant unless the offender has a permanent right of residence.

The Court of Appeal however stated that they were bound to accept, on the authority of the judgment of the Court of Appeal in Daha Essa (2012) that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported

The Court of Appeal however found that , different considerations applied to questions of evidence and the weight to be given to the prospects of rehabilitation. As to evidence, it was noted that as a matter of practicality, it was easier for the Secretary of State to obtain evidence as to support services in other Member States. However, in the Court of Appeal’s judgment, in the absence of evidence, it is not to be assumed that medical services and support for, by way of example, reforming drug addicts, are materially different in other Member States from those available here.

The Court of Appeal in agreement with what was said by the Upper Tribunal in Vasconcelos, did not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. The Court of Appeal considered that it appreciated that all Member States had an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere. The Court however considered that the whole point of deportation was to remove from the country someone whose offending rendered him a risk to the public. The Court stated that the parent Directive recognises that the more serious the risk of reoffending, and the offences that an EEA national may commit, the greater the right to interfere with the right of residence. Article 28.3 of the Directive requires the most serious risk, i.e. “imperative grounds of public security”, if a Union citizen has resided in the host Member State for the previous 10 years. Such grounds will normally indicate a greater risk of offending in the country of nationality or elsewhere in the Union. The Court considered that the greater the risk of reoffending, the greater the right to deport.

The Court of Appeal observed that a deported offender would not normally have committed an offence within the State of his nationality. There was noted to be a real risk of his reoffending, since otherwise the power to deport does not arise. The Court of Appeal considered that nonetheless, the offender will not normally have access to a probation officer or the equivalent and that this must have been obvious to the European Parliament and to the Commission when they adopted the Directive. The Court of Appeal considered that for the lack of such support to preclude deportation was difficult to reconcile with the express power to deport and that in their judgment, it should not, in general, do so.

The Court of Appeal found that in AD, the First-tier Tribunal had erred in accepting that appropriate medical treatment would be available to him in Lithuania, but found that no rehabilitative programme for him, as a recovering drug addict, would be available in Lithuania. It was considered that the Upper Tribunal should not have upheld the First-tier Tribunal’s assessment of proportionality, which was flawed. The Secretary of State’s appeal was allowed; the decision of the Upper Tribunal was set aside, and AD’s appeal remitted to be heard afresh, in the light of the latest evidence.

In LW, the Court of Appeal allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal for a fresh hearing.

In the case of ME, the Secretary of State’s appeal was allowed and his case was remitted to the Upper Tribunal.

MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC):

The issue was to what extent the prospect of rehabilitation was to be taken into account in an EEA deportation appeal and also what extent do the Essa principles still hold good?

The appeal was brought by the Secretary of State against the determination of First-tier Tribunal allowing the EEA national, MC’s appeal against the decision of 14 May 2014 to make a deportation order.

The First Tier Tribunal held that as MC had not been in the UK exercising Treaty

rights for a continuous period of five years, he was entitled only to the lowest level

of protection set out in Regulation 21. The Tribunal concluded that despite the

EEA national’s expressions of remorse and contrition there was a real likelihood that he may offend again. It was concluded that MC represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society. Citing Essa ( Essa (EEA: rehabilitation/integration) [2013] UKUT 316 (IAC)), the First Tier Tribunal in relation to the factor of rehabilitation, the Tribunal described this factor as “the prospects of rehabilitation as between this country and Portugal and an awareness of the interest ‘of the European Union in general’.

The First Tier Tribunal concluded that they had considered the potential result of a deportation to Portugal of MC and the likely diminution of the family support for the him and a withdrawal of the discipline of the licence conditions which he now faced since his release and the benefits of regular supervision in the community. The Tribunal considered whether this would have the capacity in the future to reduce the risk of re-offending he currently presented. The Tribunal considered that if this combination of support significantly reduced MC’s risk of offending, it could undermine to a significant degree the proportionality MC’s removal. It appeared to the Tribunal that none of the reports suggested that MC was incapable of rehabilitation. MC was however noted to be required to fundamentally change his current attitude and approach. As between Portugal and the United Kingdom, the Tribunal considered that MC was more likely to address his offending behaviour in the United Kingdom with the current support he had around him. The support factors could encourage the MC to develop stability in his life and his relationships and these support factors are significantly stronger in the United Kingdom.

The Tribunal stated that they had balanced all the factors in the case and the issues raised in respect of the proportionality of the decision. It was considered by the First Tier Tribunal that the decision of the Secretary of State was not justified on the grounds of the prevention of disorder and of further crimes and was not a proportionate response. It was concluded that although MC represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society his deportation would not be proportionate. MC’s appeal under the EEA regulations was allowed.

The Secretary of State appealed the decision. It was submitted that in allowing the appeal under the 2006 EEA Regulations, the First Tier Tribunal judge’s decision to treat the prospect of rehabilitation as a substantial relevant factor amounted to a misunderstanding of the guidance given in Essa (EEA: rehabilitation/integration)[2013] UKUT 316 (IAC). The judge had wrongly treated Essa (2013) as enunciating the general principle that every EEA national should be given the opportunity to be rehabilitated in the EU member state where the offences were committed. The judge had also misunderstood that the Tribunal in Essa (2013) had held that the prospect of rehabilitation could only be weighed in the balance against deportation in respect ofthose who had acquired a right of permanent residence. In the claimant’s case the judge had found that he had not been exercising Treaty rights for the requisite five years. The Secretary of State also sought to amend grounds so as to enable her to rely on the further guidance on the issue of rehabilitation in EEA deportation cases given by the Court of Appeal in Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145 . It was submitted that if the judge had had the benefit of this guidance he would have concluded that little weight should be attached to the claimant’s prospects of rehabilitation. In turn he would not have found a breach of Article 8 because he would have had to treat failure under the EEA Regulations as strengthening the public interest in deportation.

The Upper Tribunal in MC considered the issues as follows:

“28. In addition to these three cases on Essa, the recent Court of Appeal judgment in Dumliauskas has significantly recast what have been referred to as Essa principles. Whereas the Tribunal in Essa had concluded that the prospects of rehabilitation in the offender’s home state are relevant to the decision to deport only if he has acquired a permanent right of residence, Sir Stanley Burnton (LJJ Floyd and Jackson concurring) disagreed, stating at [46]:

“Whilst I have considerable sympathy with this approach, I am unable to agree with it. I can think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. Once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned… What is however affected by length of legal residence (in the sense used in Article 16.1) is the weight to be given to the respective prospects of rehabilitation. In addition, it seems to me that the decision of the Upper Tribunal in Daha Essa is inconsistent with what was said by Maurice Kay LJ in Daha Essa.”

We do not understand Dumliauskas to have overruled the entirety of the guidance given by the Upper Tribunal in Essa (2013); indeed Maurice Kay LJ expressly approved parts of it. However, in light of the further analysis provided in Dumliauskas it may assist if we seek to summarise cumulatively what these principles are, as now modified by this judgment:-

Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) ( Essa (2013) at [23]).
Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at [32]-[33]).
Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime ( Essa (2013) at [35]), not the mere possibility of rehabilitation.
Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauskas [41]).
Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas [52]).
Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]-[53] and [59]).
Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55])
In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognises that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54]).

On the logic of the Essa principles as revised by the Court of Appeal in Dumliauskas it is not open to a Tribunal re-making the decision in an appeal concerning an EEA national who has not acquired permanent residence to attach substantial weight to the prospects of his rehabilitation……”

The Upper Tribunal in MC found that the First Tier Tribunal materially erred in law and setside the decision allowing MC’s appeal. MC’s appeal was reconsidered by the Upper Tribunal and dismissed.

CONSIDERATIONS AND CONCLUSION

Having regard to the wording used in the judgments, it appears that there is no total exclusion of a running of an argument based on rehabilitation where no permanent residence has been acquired. The criticism is to the attachment of substantial weight to the prospects of rehabilitation. It is therefore possible to advance an EEA deportation appeal having regard to issues of rehabilitation but also placing some weight on other applicable factors counting against deportation in the proportionality balance exercise.

On the basis of MC, where the Tribunal correctly finds that the personal conduct of the EEA nationals does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society then issues of proportionality should be redundant and as such that should be the focus of argument in EEA deportation appeals where the facts and evidence supports it. The usual assortment of important documents such as Sentencing Judge’s Remarks, Pre-Sentence reports, NOMS’s report, OASY’s report including any relevant expert evidence as well as current Probation Services reports, where helpful, should still assit in advancing an argument that such a threat does not arise.

As reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime and not the mere possibility of rehabilitation, then where a potential deportee is imprisoned they may consider, where they have genuine intentions in this regards, that they ensure that they are enabled to undertake relevant awareness courses seeking to address their offending behaviour; where this is not forthcoming then repeated written request applications by the potential deportee in this regards should be retained for reliance in a possible future deportation appeal.

The Court of Appeal in Dumliauskas made a references to the principles in SE Zimbabwe v Secretary of State for the Home Department [2014] EWCA Civ 256 [2014] Imm AR. That case considered the deportation appeal of a non-EEA national and it was considered there that an offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life As noted by the Courts, there is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration. In combination with taking the reference to SE Zimbabwe into account in relation to the applicability of rehabilitation issues in EEA deportation appeal, the Court of Appeal appeared to express some ill – concealed frustration:

“51.It is notorious that a great deal of offending is linked to illicit drugs and/or to alcohol. Addiction to drugs leads to crimes of acquisition, including theft, burglary and robbery, aimed at financing the purchase of drugs to feed the addiction. Alcohol affects self-restraint and is particularly associated with crimes of violence.

51.I am bound to accept, on the authority of the judgment of this court in Daha Essa, that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported. I have to say that but for that authority, I would have said that this was a factor to be considered if raised by the offender, but not otherwise, just as the effect of deportation on the health of an offender need not be considered unless it is made known to the Secretary of State that it is a relevant factor”.

It may be that had the Court of Appeal in Dumliauskas not been bound by earlier authority, it may well have decided that EEA deportation appeals in relation to considerations of rehabilitation should be considered in the same way as non- EEA deportation appeals.

The Immigration Bill 2015: Message to “Illegal” Migrants in the UK- Leave Says the UK Government

Posted on September 18, 2015 by alicemuzira Standard Reply

The UK Government’s Announcement of 17 September 2015, “New measures will make it tougher than ever before to live illegally in the UK”, coincides with the publication of the new Immigration Bill which was published the same day. The bill is intended to become the Immigration Act 2016. The Bill is meant to build up on the Immigration Act 2014. To put it in basic terms, a view can be taken that the Bill sets out the UK Government’s intention of getting the UK rid of not only those without current leave to be here but also those who have leave but are refused and are intending to appeal in- country but will be denied that opportunity.

The UK Government is not hiding the fact that they want undocumented migrants in the UK to leave, if not voluntarily, then by force. The Immigration Act 2014 is also intended to make life harder for those without leave to remain and also those whose claims have been refused and are intending to appeal whilst in the UK. The Immigration Act 2014 has generated litigation and its provisions are expected to continue generating legal challenges in future in the higher courts- as such it is doubted that the publication of the new Bill or its coming into force will result in an orderly queue to the airport any time soon by those it is intended to target.

THE MAIN CLAUSES

The new Bill is to be read together with several published FactSheets relating to the various clauses.

Labour Market Enforcement- Clauses 1 to 7:

With a stated view to cracking down on serious exploitation of workers, the Government will appoint a new Director who will oversee the relevant enforcement agencies to provide an enforcement strategy for non-compliance in the labour market. The Government believes that the main bodies responsible for ensuring minimum standards are met for workers are currently not designed to deal with the increase in organised criminal activity engaging in exploitation in the labour market. It is believed that this kind of worker exploitation often appears to involve migrant workers. There will be created a new Director of Labour Market Enforcement appointed by and reporting to both the Home Secretary and the Secretary of State for Business. The Director’ s remit will cover labour market breaches, not immigration offences. The Director and the enforcement bodies will work closely with immigration enforcement wherever labour market breaches are linked to illegal immigrants or people working in breach of their visa conditions.

Illegal Working – Clauses 8-11:

The Government currently has powers to prosecute migrants with permission to be in the UK who are working illegally in the UK in breach of their conditions, however the Government considers that there is a gap in the current legislation as it does not cover people who have entered the UK illegally or overstayed their visas. A new offence will close this gap by covering any worker – self employed as well as employed.

With the intention of making it harder for people to live and work illegally in the UK, the Government will make it a criminal offence to work illegally, with a sanction of a fine and/or a custodial sentence of a maximum of 6months. By making illegal working a criminal offence in its own right, this will allow wages paid to all illegal workers to be recoverable under the Process of Crime Act 2002.

The Bill will make it an offence for an employer to employ someone whom they “know or have reasonable cause to believe” is an illegal worker. The maximum custodial sentence on indictment for an offence of employing an illegal worker will also be increased from two years to five years. These powers are intended to operate alongside and reinforce the existing system of heavy financial penalties for businesses that negligently employ illegal workers. The new measures are intended to build on legislation introduced in 2014 to strengthen punishments for employers which included doubling the maximum civil penalty to £20,000 per illegal worker.

As regards employers who continue to flout the law by employing illegal workers and evade sanctions, the Bill will introduce a power to close premises for up to 48hours. The closure may be cancelled if the employer demonstrates that they have conducted right to work checks where illegal workers have been identified. Where they cannot, the next step is to place the business under special compliance requirements, as directed by the courts. This can include continued closure for a period, followed by re-opening subject to the requirement to conduct right to work checks and inspections for compliance.

Driving Licenses- Clauses 16 and 17:

The Government’s intention is to prevent illegal immigrants from retaining UK driving licenses. The immigration Act 2014 provided the power to revoke UK driving licenses held by illegal immigrants. Foreign issued licenses cannot be revoked by the UK Government. Immigration Officers do not currently have the power to seize revoked UK licenses that they encounter. It is the responsibility of the license holder to return the revoked license to the DVLA and failure to do so is a criminal offence. The Immigration Bill 2015 will provide two new measures which build on the driving license related powers in the 2014 Act. It will provide a power for police and immigration officers to search people and premises, in order to seize the UK driving licenses(whether revoked or not) of illegal migrants. The Bill creates a new criminal offence of driving whilst unlawfully present in the UK, which carries a custodial sentence of 6months and/or fine of up to the statutory maximum. The new offence of driving whilst unlawfully present is anticipated to be a power to be used primarily by the police, in the course of their work who may encounter drivers who are not lawfully present driving on the UK roads. The vehicle used may be detained and upon conviction, the court may order its forfeiture. If a police officer stops a motorist for a driving offence, they can check the immigration status of that individual. If the individual is here illegally, the police officer will be able to search for and seize their UK driving license, arrest them for the driving offence and detain the vehicle. If the migrant is convicted of the offence, the court may order forfeiture of that vehicle. This is intended to make it harder for illegal migrants to lead a settled life in the UK.

Banks- Clause 18:

The Government intends to make it harder for illegal migrants to live and work in the UK by working with banks and building societies to restrict their access to bank accounts.

The Immigration At 2014 prohibited banks and building societies from opening current accounts or individuals who are in the UK unlawfully. Checks are performed with the anti- fraud organisation Cifas. The new Bill goes further and includes measures to prevent illegal migrants from continuing to operate existing bank accounts. This includes bank accounts opened before the 2014 Act prohibition came into force and also where accounts were opened during a period of lawful stay but where the migrant has remained in the UK after their leave expired.

Banks and building societies will be required to check regularly whether they are operating a current account for a person known to be in the UK illegally, according to information provided by the home office via a specified organisation. If a bank establishes that a customer is an illegal migrant, they will have a duty to report the match and details of any other accounts they provide to the Home Office. Measures in the bill will provide the home office with a graduated range of option which could be deployed where a current account holder is confirmed to be unlawfully present. These include requiring banks and building societies to close the illegal migrant’s accounts as soon as reasonably practicable. This measure will be used in routine cases to disrupt the illegal migrant’s ability to remain in the UK and to encourage them to leave voluntarily. The Home Office will be granted the power to apply to the courts to freeze the current account until the illegal migrant leaves the UK. Use of this power is intended to be targeted towards hard to remove cases with significant funds, to leverage co-operation with the removal process. The Bill provides for prosecuting individuals for the new criminal offence of working illegally and recovering wages as proceeds of crime. This measure will be used where there is clear evidence that the assets are the proceeds of illegal working and the person meets the criteria for prosecution. Where the account is frozen, the individual will be able to access their funds to meet basic essential living needs and the level of funds will be determined by the courts in such cases.

The measures are intended to make it harder to live a settled life unlawfully in the UK and to incentivise voluntary departure.

Residential Tenancies- Clauses 12-15 :

The Government intends to make it more difficult for those with no right to be in the UK to rent private accommodation.

The Immigration Act 2014 introduced the Right to Rent scheme, which set out to prohibit illegal migrants from accessing private sector rented housing. The Right to Rent scheme was first implemented in part of the West Midlands and the Government has announced its intention to expand the scheme across the UK. Under the scheme, private landlords, letting agents and homeowners who let rooms need to check the right of prospective tenants to be in the country by conducting simple document checks, for example a passport or biometric residence permit. Landlords who fail to make the right checks are liable for a civil penalty of up to £3,000 per illegal migrant tenant.

Immigration status is not currently a ground for eviction, but landlords may be able to gain possession for other reasons. The Bill will enable landlords to evict illegal migrant tenants more easily, and in some circumstances without a court order. Landlords will obtain a notice issued by the Home Office which confirms that the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property. The Government is also introducing four new criminal offences to target unscrupulous landlords and agents who exploit migrants and who repeatedly fail to carry out right to rent checks, fail to take steps to remove illegal migrants from their property. These landlords or agents may face a fine, up to five years imprisonment, both a fine and imprisonment and further sanctions under the Proceeds of Crime Act.

The Bill intends to encourage illegal migrants, who are evicted, to make arrangements to depart from the UK. If they do not the Government states that they will take steps to remove them.

Enforcement Officer Powers- Clauses 19-28 and 30:

The Government intends to tackle illegal immigration and minimise its impact on public services, communities and businesses in the UK.

Immigration officers currently have powers to examine, arrest and detain illegal migrants for the purpose of removal. They also have search powers to find passports and travel documents to aid removal but if they find other evidence of use to law enforcement partners they cannot always act.

Immigration officers currently do not have powers to search for and seize evidence where the intention is to take administrative action, either to remove an illegal migrant from the UK or to serve a civil penalty notice on an employer or landlord. The Bill provides additional powers of search and seizure, but no extra entry powers.

The Immigration Bill will give immigration officers powers to seize and pass on evidence where there are reasonable grounds to believe it has been obtained through, or is evidence of, a crime and where it is necessary to prevent it being concealed, damaged, or destroyed.

The Bill creates new powers to allow officers to search for and seize evidence of illegal working (such as pay slips or time sheets) or of illegal renting (tenancy agreements and letting paperwork).

Detained migrants and prisoners facing deportation are subject to routine searches for items which may pose a threat to security, but not for nationality documents. This Bill creates new powers to search for and seize these documents which will help speed up removal.

The Bill ensures warrants for immigration officers to enter premises are aligned with police warrants.

The Bill provides a power to cancel leave extended by statute where conditions of leave have been breached or the applicant uses or has used deception in seeking leave to remain.

Immigration Bail- Clause 29

The Government intends to create a new power to allow the Home Office to require the courts to tag foreign offenders released on immigration bail but are waiting to be deported so that the Government always knows exactly where they are. This is intended to prevent absconding and increase the number of criminals deported. Currently, when a foreign national offender is released on bail, a judge has the discretion to tag a foreign national offender. The Immigration Bill will change the law to allow the Home Office to mandate a tag as a bail condition when an individual is released on bail. Tagging foreign national offenders using GPS technology is intended to allow immigration officers to more quickly re-detain them when deportation is imminent. The Government considers that monitoring individuals using GPS tags will also improve public protection.Illegal migrants, including foreign national offenders, who are awaiting deportation or removal, can be placed on conditions, such as reporting, if detention is not appropriate. The Government considers that the current legal framework for this is complex and fragmented as there are six different legal statuses including immigration bail and temporary admission. It is believed that this complexity is confusing and leads to litigation. The reforms will create a single power of bail, where it is clear what conditions can be imposed, when and what the sanction is for breaching conditions. Tagging will not automatically apply to all non-detained foreign national offenders as the government will seek electronic monitoring as a condition of bail when an foreign national offender is released.

Appeals- Clauses 31 to 33:

The Government intends to make it easier to remove those who have no right to be in the UK by enabling them to remove a person whose human rights claim has been refused and making them appeal outside the UK, provided this does not breach their human rights. The intention is to extend the current “ deport first , appeal later” policy to other immigration cases and not just foreign national offenders liable to deportation. The Immigration Act 2014 reduced the number of rights of appeal against immigration decisions from 17 to 4. It also created a new power to allow those subject to deportation, primarily foreign criminals, to be deported first so that they have to submit any appeal after their removal – i.e. from outside the UK – so long as this does not cause serious irreversible harm or, otherwise breaches human rights. The Government now plans to extend this power to enable it to be applied to all immigration cases. A person will therefore only be able to appeal before removal where an asylum claim has been refused (provided it is not clearly unfounded) or where a human rights claim has been refused (provided it is not clearly unfounded) and there is a real risk of serious irreversible harm or other breach of human rights if the person is removed before the appeal. Where there is a real risk of serious irreversible harm, or breach of human rights, the Government states that the person cannot be removed from the UK before their appeal has been determined.

Support for Certain Categories of Migrants- Clause 34:

The government expects more illegal migrants to leave the UK rather than access support. They intend to restrict the support they give to people whose claims for asylum have been found unsubstantiated and their dependants, to those who are destitute and face a genuine obstacle to leaving the UK through changes to the Immigration and Asylum Act 1999.

The UK provides support for asylum seekers who would otherwise be destitute until their claim is finally determined, in line with their international obligations. However, the Immigration and Asylum Act 1999 provides support in broader circumstances. Section 94(5) allows failed asylum seekers with children to continue to receive the same support once their asylum claim has been finally rejected. Section 4 of the 1999 Act provides support for other failed asylum seekers and other categories of migrants.

The Immigration Bill aims to reduce the scope for such support to remove incentives for failed asylum seekers to remain in the UK illegally.

The Bill will make these key changes to the existing support framework: those with children with them when their asylum claim and any appeal are rejected will no longer be treated as though they were still asylum seekers and will cease to be eligible for support under section 95; section 4 will be repealed and support will only be available to failed asylum seekers and any dependent children if there is a practical obstacle that prevents them from leaving the UK.

To avoid destitution, the Home Office will continue to support failed asylum seekers with children if they cannot leave the UK because of a practical obstacle beyond their control (for example because they are unable to travel for medical reasons or because they are waiting for their national embassy to issue them with travel documents).

As regards how the proposals affect asylum seekers and refugees, the Government states that they will not. They state that they will continue to meet their international obligations to both groups. Asylum seekers who are destitute will be provided with accommodation if they need it and a weekly allowance to cover their essential living needs. If they are granted refugee status, they will have access to the labour market and be eligible to apply for mainstream benefits.

There will be transitional arrangements for failed asylum seekers already in receipt of support under section 95 or section 4 of the 1999 Act when the new measures come into force. This will avoid the scenario in which large numbers of families lose support abruptly. There are existing powers to manage these cases off support if they refuse to take steps to leave the UK voluntarily and these will be used on a case-by-case basis.

Border Security- Clauses 35 to 37:

The Government state that they intend to crack down on those who exploit illegal migrants by seeking to smuggle them into the UK. The Bill will give Border Force new powers to target vessels in UK territorial waters suspected of involvement in facilitating illegal entry into the UK.Border Force operates a fleet of cutters to enforce revenue and customs matters, in particular to lead the fight against the importation of controlled substances. Officers on board cannot exercise immigration powers in UK territorial waters so cannot intervene when they identify vessels which they suspect to be involved in facilitating illegal migration. The Immigration Bill will provide Border Force Officers with new powers to: stop, board, divert and detain a vessel where there are reasonable grounds to suspect that it is being used to facilitate the breach of immigration law or is being used in connection with such facilitation; search a ship and anyone and anything on the ship to obtain information or evidence of the facilitation offence; arrest of any person reasonably suspected of being guilty of an offence of facilitation and seize relevant information or evidence; use reasonable force in the exercise of any of these powers or functions.

When passengers arrive on international commercial flights they must present at immigration control. Carriers and port operators who fail to comply with their legal obligations in this regard may be liable for a criminal offence. The Immigration Bill will create a civil penalty scheme to incentivise carriers and port operators to invest in better passenger management processes. The detail of the scheme will be in secondary legislation and codes of practice, including the maximum penalty that can be imposed.

Travel bans restrict the movement of named individuals associated with regimes or groups, including terrorist groups, whose behaviour is considered unacceptable by the international community. The decision to impose a travel ban is made either by the United Nations’ Security Council or by the Council of the European Union. To implement travel bans in the UK, secondary legislation is laid before Parliament to amend the Immigration (Designation of Travel Bans) Order 2000. The Immigration Bill will remove the need to update this secondary legislation. Instead international travel bans against non EU nationals will take effect in the UK automatically.

English Speaking in the Public Sector- Clauses 38 to 45:The Government wants to ensure that all public sector workers in customer- facing roles can speak fluent English.

The code of practice will outline the standard of spoken English to be met, the action to be taken by a public authority where someone does not meet that standard, the procedure to be operated to deal with any complaints and how the public authority can comply with its other duties including its obligations under the Equality Act 2010.

The Government will place a duty on public authorities to ensure that each person who works for a public authority in a customer-facing role, speaks fluent English. In determining how to comply with this duty, a public authority must have regard to a code of practice. The duty will ensure every citizen receiving help or advice is served by someone who can provide them with advice in clear English.

At the moment, the Government believes that there are many vital customer-facing public sector roles which do not require the job holder to be a fluent English speaker. This includes unqualified teachers, teaching assistants and unregulated NHS staff. It is considered that this cannot be allowed to continue for roles where communication with the British public is vital to deliver an effective service.

Fees and Charges- Clauses 46 to 50:

The Government wants to encourage businesses to source the skilled workers that they need from the resident labour market. They intend to introduce an immigration skills charge , which is intended to help address current and projected skills needs in the UK economy and contribute to reducing net migration.

The Bill will also allow the Home Office to formalise the framework of costs underpinning the passport fees to apparently better reflect the costs incurred in providing passport services, for example the costs of processing more complex applications requiring costly Home Office interventions, and to allow some passport fees to be set at above cost. This is intended to alleviate the corresponding burden on the vast majority of passport applicants and potentially facilitate further fee reductions.

Existing legislation governing the registration of births, deaths, marriages and civil partnerships is considered restrictive in terms of the products and services for which fees may be charged. The Bill will introduce what is stated to be modernised and flexible fee-raising powers in respect of services provided, enabling fees to be set for a wider range of products and services than is currently possible. This is stated to be intended to reduce the burden for providing registration services on the taxpayer by allowing such services to become increasingly self-sufficient.

The Bill will introduce a new immigration skills charge which will be applied to employers sponsoring non-EEA nationals who come to the UK under Tier 2 of the Points-Based System. The specific employers and amount will be set following consultation. The money raised will then be used to address skills gaps in the UK by contributing to funding training, particularly more apprenticeships.

CONSIDERATIONS

On the basis of the new Bill as per the Government’s intentions, those without leave to remain may seriously wish to consider seeking to regularise their immigration status in the UK. It is not every person who is undocumented who cannot establish a legal basis of stay upon application. It is possible for such a person to rely upon the Immigration Rules themselves as a basis of stay.

A person may be able to show by way of documentary evidence that they have been living in the UK continuously for at least 20years and be granted leave to remain.

A person without leave may be able to show that he has a child aged under 18years in the UK who has spent at least 7years continuously here and argue that it would be unreasonableness to expect the child to be removed with the parent to the country of origin.

Further a young person aged between 18 and 25years may also be able to show that they have lived continuously in the UK for half their lives.

It may also be possible to show that they are applicable exceptional circumstances in an individual or family case such that they should be granted leave to remain in the UK outside the immigration rules by reliance upon Article 8 of the ECHR.

A single mother with no leave to remain may have a child who is British by virtue for example of that child having been born of a British or settled father. A “Zambrano” application or family life Article 8 human rights application may be submitted to the Home Office. As regards the “Zambrano” application, a primary carer of a British citizen will qualify for a derivative right of residence where they can show that they are a primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if they as the primary carer are required to leave the UK.

An undocumented father may have a British child but be separated from the British or settled mother yet be able to obtain an order from the family courts ordering contact and therefore be able to apply for leave to remain as a parent seeking to have access to the child.

The Government intends to extend the “ deport first, appeal later ” powers to all immigration cases. This certification procedure is challengeable (where there are merits to the case) by way of judicial review and where a claim is made in some cases removal is normally suspended pending a decision on grant of permission to proceed with the claim. The Home Office has published guidance on how to apply the “serious irreversible harm test” and the relevant guidance gives the following example of where serious irreversible harm could result: the person has a genuine and subsisting relationship with a child or partner who is seriously ill, requires full-time care, and there is no one else who can provide that care. Not many people will be able to meet the high threshold applicable to resist removal. In the Government’s Fact Sheet, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response as published on 17 September 2017 is ,”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. Basically the answer is none and as such providing for an out of country appeal in practise is simply an illusion, with only a mere hope of obtaining a successful outcome, however in deserving cases with prospects of success, it is suggested that the certification procedure be challenged by way judicial review prior to removal action being taken.

CONCLUSION

It is therefore likely that before the Bill becomes law, the Home Office may well see an unexpected flurry of activity as regards submission of applications for leave to remain with the result that those that had been the target of the new provisions may well obtain leave to remain, if not granted directly upon application by the Home Office themselves or failing that following a successful in country appeal as it is not every case that can be certified or not have such certification successfully lifted.

UK Immigration Detention: Prolonged, Inhumane, Unjustified and Undignified

Posted on September 11, 2015 by alicemuzira Standard 1

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”.

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.
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 2^nd 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 4^th July 2007 and 14^th August 2009. The Deputy Judge decided that from 4^th July 2007 until 9^th 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 4^th July 2007 – 14^th 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 10^th 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, 10^th 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 4^th July 2007 and 14^th 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 10^th November 2008. There was no evidence to support the Secretary of State’s submission that the Appellant’s continued detention after that date until 14^th 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 10^th 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.

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

Posted on September 2, 2015 by alicemuzira Standard Reply

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.

The Government’s Deport First, Appeal Later Policy – Deportation of Foreign National Criminals and Appeal Rights After the Immigration Act 2014

Posted on April 10, 2015 by alicemuzira Standard Reply

INTRODUCTION

The Government has brought in changes in relation to restricting appeal rights and these mostly affect foreign national criminals subject to deportation. In essence where foreign national criminal who are subject to deportation do not raise a protection claim or human rights claim they will not obtain a right of appeal. However where they do in fact raise these claims in order to resist deportation, the Home Office may certify the claim in particular relying upon new certification powers thereby denying the foreign national criminal an in- country right of appeal altogether and instead requiring them to appeal outside the UK following departure.

LIABILITY TO DEPORTATION

Non- EEA foreign criminals may be considered for deportation under the Immigration Act 1971 or the UK Borders Act 2007.

To be subject to automatic deportation provisions the foreign national criminal must meet the relevant criteria under the UK Border Act 2007. Where the foreign national criminal does not meet the automatic deportation threshold criteria consideration is given to whether deportation should be pursued under the Immigration Act 1971 because it would be conductive to the public good.

Section 32(5) of the UK Borders Act 2007 sets out that the Secretary of State must make a deportation order in respect of a foreign criminal where:

the criminal was convicted in the United Kingdom and sentenced to a period of imprisonment, and
the period of imprisonment is 12 months or more, and
the sentence is a single sentence for a single conviction, it must not be an aggregate sentence or consecutive sentences, and
the criminal was serving that sentence on or after 1 August 2008, and
the criminal had not been served with a notice of decision to deport before 1 August 2008, and
none of the exceptions set out in section 33 of the 2007 Act apply.

Section 33 of the UK Borders Act 2007 sets out exceptions to automatic deportation. Where an exception applies then automatics deportation cannot continue however that does not necessarily preclude deportation action under the Immigration Act 1971. An individual is also exempt from automatic deportation under sections 33(1)(b) of the UK Borders Act 2007 if they fall within sections 7 or 8 of the Immigration Act 1971 and they are exempt from deportation. Where the Secretary of State decides none of the exceptions apply and that deportation under section 32 of the UK Borders Act 2007 is required, a decision to deport must be served setting out why the foreign national criminal’s presence is not conducive to the public good. Section 3(5) of the Immigration Act 1971 allows the Secretary of State to deport individuals where their presence in the United Kingdom is not conductive to the public good. This gives the Secretary of State discretion to act in a way that reflects the pubic interest.

A non -EEA foreign national will normally be considered for deportation pursuant to the Immigration Act 1971 if they do not meet the criteria for deportation under the UK Borders Act 2007 but they have been involved in criminal activity in the UK or overseas and meet one of the criteria below;

the non -EEA foreign national is recommended for deportation by a court empowered to do so;
the non- EEA foreign national has received a custodial sentence of any length for a serious drug offence or gun crime;
the non EEA foreign national has committed a crime and received a custodial sentence of 12 months or more. This can be made up of aggregate or consecutive sentences;
the non EEA foreign national is a persistent offender. “Persistent offender” means a repeat offender who shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or which escalate in seriousness over time, or a long history of minor offences;
the non EEA foreign national has been sentenced to less than 12 months’ imprisonment, but the Secretary of State considers that the offending has caused serious harm either in the UK or in another country;

The Home Office can also take into account:

Cautions: Police cautions can also be taken into account when considering whether deportation is conducive to the public good;
Previous Convictions: All previous convictions can be taken into consideration when making a deportation decision on or after 13 December 2012;
Serious Harm offences: The Secretary of State has discretion to consider whether an offence has caused serious harm. Such an offence may result in a sentence of less than 12 months but may still be grounds on which to pursue deportation.

Section 3(5)(b) of the Immigration Act 1971 provides for deportation of family members if another person to whose family he belongs is or has been ordered to be deported. When considering whether section 3(5)(b) is appropriate full account must be taken of paragraphs 365 to 366 of the Immigration Rules. Section 7(1) of the Immigration Act 1971 states that it is not lawful to deport Commonwealth or Irish Citizens who were Commonwealth or Irish Citizens and were ordinarily resident in the UK for the commencement of the Act in January 1973 and ordinarily resident in the UK for at least five years before the decision to make a deportation order. Where the Home Office decide that deportation is appropriate then a decision to make a deportation order is served by the Secretary of State setting out why the foreign national’s presence is non-conducive to the public good. The decision informs the foreign national that they may if they wish make representations within 20 working days as to why they should not be deported. The decision is required to issue a warning under Section 120 of the Nationality, Immigration and Asylum Act 2002 which places a continuing obligation to raise with the home office any reason why they should be permitted to remain in the UK including any time there is a change of circumstances as soon as they occur. The decision is also required to seek representations from the foreign national about whether there are any reasons why any appeal against a final refusal of any claim by the Home Office should not be certified under section 94B of the 2002 Act, the effect of which would be an out of country right of appeal. Article 8 claims from foreign national criminals are considered under paragraphs 398 to 399A of the Immigration Rules also with reference to sections 117A to 117D of the Nationality Immigration and Asylum Act 2002(as amended by section 19 of the Immigration Act 2014).

If there is found to be a breach of the UK’s obligations under the refugee convention or the ECHR then deportation under either the UK Borders Act 2007 of the Immigration Act 1971 will not be possible.

DEPORTATION APPEALS AFTER 20 OCTOBER 2014

The changes to the immigration appeals system in the Immigration Act 2014 are being brought into force on a phased basis. The first phase started on 20 October 2014 and included foreign criminals being deported. The new appeals regime will also apply to persons being deported as family members of foreign criminals under section 3(5)(b) of the Immigration Act 1971.

Rights of appeal are restructured such that a person only has a right of appeal where the Secretary of State refuses a human rights claim or a protection claim or revokes a person’s protection status. The 2014 Act does not change the rights of appeal under EEA regulations and deprivation of citizenship.

The place from which an appeal can be brought or continued is dependant on where the person was when the claim was made and the nature of the claim. The definition of “foreign criminals” does not include all deportation cases. Some persons who are not foreign nationals may be subject to deportation. During the first phase of commencement of the new Act these persons will retain rights of appeal under the pre- Immigration Act 2014 regime. Where a foreign national criminal makes a human rights or protection claim if the claim is refused the right of appeal is under the new Act. If no representations are made after the above mentioned 20working day deadline for representations has passed, the Secretary of State is most likely to make a decision on issuing a deportation order on the facts that are before them. As a human right claim will not have been made by the individual the deportation order will not be appealable and the individual may expect to be removed. Any representations received after the deportation order has been made must still be considered by the Home office. If it is decided on the basis of the post – deportation order representations that deportation should not be pursued the deportation order will be revoked. However under the new Act there is no longer a right of appeal against deportation or the refusal to revoke a deportation order. Therefore from 20 October 2014 foreign criminals will no longer be able to appeal against a deportation decision. Any foreign criminal who applies to have their deportation order revoked will fall under the new appeals regime if they are served with a refusal to revoke( a revocation decision) on or after 20 October 2014. This will be the case irrespective of whether the decision is served in the UK or overseas.

A person is however likely to have a right of appeal where the Secretary of State refuses to revoke a deportation order only where they make a protection or human rights claim which is refused.

CERTIFICATION

If the representations raise protection or human rights grounds and it is decided to refuse the claim(s), the Secretary of State is required to consider whether the claims should be certified under existing powers (section 96 and section 94 of the 2002 Nationality and Immigration Act) or in the case of non- protection claims under section 94B of the 2002 Act( as inserted by the 2014 Act) which allows the certification of human rights claims made by those liable to deportation in certain circumstances. Where it is not possible to certify a protection or human rights claim under the above mentioned provisions then the foreign national will have an in- country right if appeal.

CONCLUSION

The current government ‘s policy in relation to foreign national criminals is ” deport first, appeal later”. In practice therefore there are instances of foreign national criminals who having held indefinite leave to remain for up to 20years with families here having their human rights claims being refused and certified under Section 94B of the 2002 Act. They are expected to appeal outside the UK following their departure. The Home Office themselves acknowledge that meeting the threshold for the irreversible harm test in this regards is high and that cases that will succeed are rare. Therefore although there is a reduction in rights of appeal as a result of the amending provisions of the 2014 Act and the introduction of new and additional certifying powers, in practice the mere fact of potentially being able to appeal a human rights claim if refused is just but a mere hope.

Where certification is applied, this means currently in light of the relatively new appeal provisions, judicial review claims will be lodged as the Section 94B power of certification is discretionary and it may also be possible to seek to challenge the certification decision also having regard to what appears a restrictive accompanying policy being applied in conjunction with Section 94B of the 2002 Act. Therefore rather than expediting removals of foreign national prisoners by denying them a right of appeal in- country, for some time at least there will be a priority by claimants to take judicial review action. Having regard to the lengthy period of time the Upper Tier Tribunal is taking to consider such types of review claims, it is not only likely that it will take longer to deport affected persons but also that whilst judicial review claims are pending they may even be granted bail by the Tribunal.

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