Migration Watch UK: News

Legal Aid in Immigration and Asylum Cases

As always with these legal briefing papers it is stressed that they are not published as authoritative legal advice but for general guidance and information for users of the Migration Watch website.

Restrictions on the availability of legal aid are imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. the provisions of which on legal aid were brought into effect in early April 2013. This is a substantial enactment dealing with three major subjects. Of its 154 sections 62 relate to legal aid, which is made the responsibility of the Lord Chancellor (otherwise the Secretary of State for the Justice Department), who is required by section 4 of the Act to appoint a civil servant as Director of Legal Aid Casework. Section 8 defines the general scope of civil legal services, including providing advice and representation in relation to legal proceedings.

To see the full Briefing Paper No 8.70 click here.

Convicted Foreign Criminals and the Right to Family Life

The paper which appears below under the title “Convicted foreign criminals and the right to family life (2)” was completed on 13 February 2013.  It is appropriate to precede it with further comments following the Home Secretary’s article on the subject which appeared in The Mail on Sunday on 17 February.  The Home Secretary accuses the judges of disregarding the will of Parliament in failing to implement the provisions of HC 194 (see below for an explanation of HC 194) when considering appeals against deportation by convicted foreign criminals.  Her anger appears to have been provoked by three recent decisions of the Upper Tribunal (Immigration and Asylum Chamber), the most recent of which is discussed below. One of her complaints is that “some judges seem to believe that they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been weak”.  This appears to be a reference to another case Izuazu [2013] UKUT 45. The way Immigration Rules are made is explained in legal briefing paper 8.63.  Under the provisions of section 3(2) of the Immigration Act 1971 they are subject to approval by both Houses of Parliament by the negative resolution procedure.  The Rules contained in HC 194 went through this procedure in June 2012 and were debated at some length by the House of Commons.  However, the Tribunal in Izuazu made a disparaging and unjustifiable reference to this procedure by saying that it “provided a weak form of Parliamentary scrutiny” (paragraph 49).

See the full Briefing Paper No 8.69

Judicial Review – Proposals for Reform

27 December, 2012

The Ministry of Justice has recently published a consultation paper on this subject. The need for reform arises because of the enormous growth in numbers of applications for Judicial Review (JR) and the paper acknowledges in paragraph 24 that the main area of growth has been in immigration and asylum cases.  In 2000 there were 4250 applications and in 2011 over 11,000. The paper is mainly directed at consulting with practitioners on the practicalities of speeding up and simplifying procedures. It acknowledges that since changes in immigration and asylum procedures in 2011 certain limited categories of judicial review applications can now be heard in the Upper Tribunal, Immigration and Asylum Chamber, which is a court of record.

     I quote paragraph 25 of the paper:

 “Measures in the Crime and Courts Bill, currently before Parliament, will, if enacted, allow for all immigration, asylum or nationality judicial reviews [emphasis supplied] to be heard in the Upper Tribunal…”

The Crime and Courts Bill, which recently completed its passage through the Lords and now goes to the Commons, is a substantial piece of legislation covering a wide range of subjects relating to the administration of justice. It does not deal specifically with immigration or asylum. However, it aims at achieving greater flexibility in the deployment of judges across the various chambers of the Tribunal and will provide for the possibility of judges of the First Tier and Upper Tribunal to be deployed into the ordinary courts. This should in the case of immigration and asylum JR applications mean that there will be a greater reserve of judges with appropriate experience to deal with them. The paragraph quoted suggests that the Upper Tribunal will have powers to hear all immigration and asylum JR applications itself. There is nothing specifically to that effect in the explanatory notes on the Bill. I assume that the words quoted above mean that the flexibility of judicial manpower which should result from the operation of the Bill when it becomes an Act will have that result.

The consultation paper does not deal with legal aid, though this is obviously a material factor in relation to JR applications. I have ascertained that legal aid is obtainable for JR applications, but not if the subject matter of the application has been dismissed on appeal or JR in the previous 12 months. It is also unavailable or challenges to removal directions following a decision to remove or conclusion of appeal against such a decision in the previous 12 months. A general safeguard limiting the availability of legal aid in particular cases is that applicants should be able to demonstrate that they have arguable cases which stand some chance of success.

Harry Mitchell, QC

Honorary Legal Adviser, 
Migration Watch UK

Bill of Rights – Commission’s Report

21 December, 2012

The Commission set up in 2011 to report on the possibility of a UK Bill of Rights published its report yesterday, 18 December. It has not attracted much attention from the media. The report itself runs to 282 pages, which I do not claim to have read in full. I was aware that its terms of reference rather oddly precluded the Commission from considering the possibility of the UK’s withdrawal from the European Convention on Human Rights (ECHR) but had not previously appreciated that this prohibition was an addition to the terms of reference on which Nick Clegg had insisted.

It is interesting that the report notes that only a quarter or so of those who put in submissions to the Commission were in favour of a UK Bill of Rights. Nevertheless the majority of the members of the Commission, seven out of nine, conclude that there is a strong argument in favour of such a Bill on the basis that it would incorporate and build on the UK’s obligations under the ECHR. Two members wrote their own dissenting conclusions on the main ground that the majority had failed to identify any shortcomings in the Human Rights Act or its application by the courts - a ground which anyone concerned in recent years with the application of the ECHR in numerous major court decisions on asylum and immigration cases must surely find astonishing. They appear also to hint at suspicions that consideration of a UK Bill of Rights may be a way of setting about the process of withdrawing from the ECHR.

To read the full Briefing Paper No 8.68 please click here

UNHCR Guidelines – Sexual Orientation

The United Nations High Commissioner for Refugees (UNHCR) published on 23 October 2012 a new set of Guidelines on International Protection relating specifically to claims to refugee status based on sexual orientation under the 1951 Convention on the Status of Refugees.  These Guidelines supplement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status issued for the guidance of decision takers in countries which are signatories to the 1951 Convention.  The Handbook does not have the force of law but in practice is heavily relied on by civil servants and judges taking decisions on asylum applications and appeals….

To see the full Briefing Paper No 8.67 click here.

An African War Criminal

An appalling case is reported today, 8 October 2012, in the Daily Mail Online. It is the story of a Sudanese African whose identity is not disclosed, who in the course of a number of BBC interviews said that he was between 2003 and 2006 a fighter in the Janjaweed militia which was responsible for the slaughter of an estimated 300,000 people during the war in Darfur. In 2006 he deserted and came to Britain to claim asylum but his case was not decided until 2011. In 2008 he gave interviews to The Times and to BBC’s Newsnight, in which his anonymity was preserved, and claimed to have shot large numbers of innocent people.  His claim for asylum was rejected on the ground that he was a war criminal and therefore in accordance with the provisions of Article 1(F)(i) of the Refugee Convention was not entitled to international protection. Also he could take advantage of what is known as “internal flight” by moving to another part of the Sudan where his identity would not be known.  His first appeal was allowed, but when the Home Office appealed to the Upper Tier of the Immigration and Asylum Chamber the asylum claim was dismissed but his appeal succeeded on human rights grounds. 

The Senior Immigration Judge who disposed of the appeal ruled that his identity could well have become known because of his appearance on Newsnight and he was therefore protected by Article 2 of the ECHR which protects the right to life and prohibits killing without exceptions other than in self-defence, effecting a lawful arrest or in the course of lawful action taken for the purpose of quelling a riot or disturbance.  By contrast, Article 8, the right to family life, does allow in general terms of lawful exceptions.  The scope of these in relation to deportation decisions on cases of convicted criminals has now been clarified by recent amendments to the Immigration Rules which are explained in Briefing Paper 8.39

The UKBA has expressed its frustration at this result and has had to accept that the man will now be allowed to remain in the UK indefinitely but states that he cannot lawfully claim benefits, work or study but can be subjected to regular reporting requirements. 

Harry Mitchell QC
Honorary Legal Adviser
Migration Watch
8 October 2012

Recent Supreme Court Cases

In its judgment in the case of RT (Zimbabwe) and others v. Secretary of State for the Home Department [2012] UKSC 38 delivered on 25 July 2012 the Supreme Court gave an important ruling in relation to asylum appeals. The four parties from Zimbabwe were asylum seekers claiming that if they were returned to Zimbabwe there was a reasonable degree of likelihood that they would face persecution on account of their lack of political views.

Read the full Briefing Paper No 8.66

Supreme Court Pronounces on the Immigration Rules

In Briefing Paper No 8.43, issued in July 2010, I commented on the case of Pankina v. Secretary of State for the Home Department [2010] EWCA Civ.719, decided by the Court of Appeal. The principle enunciated in that case is that changes in the law, in particular to detailed provisions in the Immigration Rules, must be made in proper legal fashion and not by administrative fiat of the Home Secretary. The Court of Appeal’s decision has been followed in other cases and has now been endorsed by the Supreme Court in Alvi (Respondent) v. Secretary of State for the Home Department (Appellant) [2012] UKSC 33, decided on 18 July 2012.  The Supreme Court dismissed an appeal by the Secretary of State against a decision of the Court of Appeal.

To see the full Briefing Paper No 8.65 click here  

Bill of Rights - Second Consultation

In our legal Briefing Paper No 8.55 published in August 2011 I set out the views of Migration Watch in response to the initial consultation paper issued by the Commission on Human Rights.  For all the reasons set out in that paper we expressed ourselves to be strongly opposed to a new Bill of Rights. On the basis of experience since the Human Rights Act 1998 was brought into force in 2000 we concluded that in ways which the briefing paper summarised, the direct availability of the provisions of the European Convention on Human Rights (ECHR) in litigation in the United Kingdom courts had been detrimental to effective immigration control. We have noted in legal Briefing Paper No 8.62 the new Immigration Rules which came into force on 9 July 2012 with the objective of restricting the ability of foreign convicted criminals to avoid deportation by reliance on the right to family life contained in Article 8 of the ECHR. It remains to be seen whether the new Immigration Rules will achieve the desired effect.

To read the full document go to Briefing Paper No 8.64

Right to Family Life – New Immigration Rules

The Home Office has recently promulgated a document running to 45 pages which substantially amends those paragraphs of the Immigration Rules which relate to family life. In this paper I am concentrating on those amendments which relate to the ability of convicted immigrant criminals to plead in accordance with Article 8 of the European Convention on Human Rights (ECHR) that deporting them would not be compatible with their right to family life.  Cases in which such pleas have been successful have caused much public concern and sometimes anger in recent months.

To read the full document go to Briefing Paper No 8.63