RSS Feed

Tag Archives: Immigration

Begum judgment: a dilemma for liberals

Posted on

How awkward! For Lisa Nandy, for Labour MPs in general only just getting used to donning the Union Jack waistcoat, and for all liberal constitutionalists who are believers in the rule of law and defenders of judges from allegations of “treachery” and “activism”.

The Begum Supreme Court ruling that “Jihadi bride” Shamima Begum cannot return to Britain to fight for her British citizenship has put them in a very contorted position. These, after all, are the people who believe it is right that judges stand in judgment over the executive; that they are a bulwark against oppressive government actions. That, after all, is the “rule of law”.

Yet here is a case where the highest court in the land supported the Government against the individual, backed the Goliath against a tragic single mother seeking to assert her rights, declared, indeed, that the courts should not intervene in such government policymaking.

The position of Nandy, the shadow Foreign Secretary, epitomises the agony on the liberal left. In the past she has, in principle, backed Begum’s return, saying (according to this Labour site last July): “The law was on the side of bringing her back to the UK, because it’s not legal to deny someone a fair trial or to make them stateless.” Here, though, is what she said on BBC 4’s Any Questions in response to the Begum decision (with emphases added):

  “I suppose first of all to say we respect the court’s decision. The judgment that the Home Office put forward was that it would create national security risks for her to return to the UK to appeal against the decision to strip her of her citizenship. She wants to have that heard in the UK. The Home Office wants that to be heard remotely from the camp that she is currently in and the Supreme Court ruled with the Home Secretary essentially that this [her return] creates national security risks. We wouldn’t welcome the prospect of anyone returning to the UK who wishes us harm.”

Read the rest of this entry

Coronavirus crisis: just the time for an experiment in deregulating child safeguarding

Posted on

Everyone agrees: the coronavirus lockdown is putting particular pressure on vulnerable children. They are more at risk of violence and abuse when confined to their own homes and less able to seek help. Only 5% of them are believed to be at school, where they have a right to go despite the lockdown.

So the Government will have put much thought into helping under-pressure local authorities and their social workers to have the emergency legal backing to perform their child safeguarding duties in these particularly challenging circumstances, right?

Wrong. In fact what has most exercised the Department for Education is launching an experiment to reduce or remove certain statutory local authority child safeguarding duties – using the coronavirus crisis as an excuse. Hence the  Adoption and Children (Coronavirus) (Amendment) Regulations 2020 – a piece of secondary legislation published by the Government on 23 April in a Parliament of MPs scattered around a country on lockdown and passed into law the morning after.

The worry is that the Government has used coronavirus as a stalking horse for an experiment in what it has already been trying to do for some years despite Parliament’s opposition – producing a less regulated system of child safeguarding. The fear is that emergency legislation is actually crafted as a response to a longstanding Conservative bugbear – that councils should be relieved of safeguarding obligations – rather than a response to the Covid-19 emergency. Read the rest of this entry

Leveson anger over lawyer’s asylum case ‘shambles’

Posted on

Senior UK judge Sir Brian Leveson has strongly criticised a solicitors firm for the “systematic failure” surrounding an asylum application on behalf of two Pakistanis. The handling of a judicial review application by solicitors Rashid and Rashid, of Merton High Street, South Wimbledon, London, was put under investigation by the Solicitors Regulation Authority.

Leveson, President of the Queen’s Bench Division said: “What has happened in these cases follows what has become an all too familiar and depressing pattern in which the legal representatives demonstrate a remarkable lack of knowledge and/or regard for the substantive and procedural rules governing claims for judicial review.”

He spoke of the danger of lawyers abusing the court processes for personal gain and questioned whether Rashid and Rashid had acted “in a professionally appropriate manner towards its clients”. The suggestion was that the firm extracted a fee of around £5,000 with a promise that the clients would have experienced counsel, yet the case seems instead to have been entrusted to an inexperienced case worker. That would be a clear breach of duty, said Leveson. 

Mr Justice Jay, who received the application in the High Court, had said: “These proceedings are a complete shambles. You have not begun to understand the basic procedures which apply.”

Rashid Khan, the sole principal at the firm, has admitted the grounds set out in a judicial review application in the case of Adil and Amir Akram by the case worker, who holds a legal secretary diploma, “were badly drafted and failed to identify the relevant principles”.  Read the rest of this entry

Algerians win new round in human rights battle against deportation

Posted on

Six Algerians considered “a threat to the national security of the United Kingdom” have won a new round in a legal battle that has, in three cases, lasted nearly eight years to resist deportation on human rights grounds. The Case of BB & Others v Secretary of State for the Home Department considers how far poor treatment and physical conditions (rather than torture) in foreign detention centres lacking British standards may justify a human rights bar to deportation. The issue is about “the requisite minimum level of severity needed to breach Article 3″ (of the European Convention on Human Rights on torture and inhuman treatment).

An agreement is in place between the UK and Algeria that terrorism suspects will not be tortured or mistreated on their return. However, the Court of Appeal decided that a tribunal (SIAC) that found the Algerians could be deported had failed to give full consideration to whether their potential detention and interrogation for up to 12 days by military authorities in Algeria would itself constitute “inhuman treatment” under Article 3. 

The court also questioned whether there were adequate safeguards to verify whether the Algerian authorities were observing the assurances given to the the UK Government about treatment of deportees. The assurances included Algeria’s acceptance in the case of any deportee of “the right to respect, in any circumstances, for his human dignity”.

The Special Immigration Appeals Commission (SIAC) will now have to look at the case again and consider evidence that conditions at Antar barracks interrogation centre in Algiers, where the men would be held temporarily, are not acceptable. 

Read the rest of this entry

Alvi immigration case: Supreme Court rejects Home Office codes of practice

Posted on

The Home Office has been found to be in breach of the law by excluding migrants from Britain using “rules” in codes of practice that have not been sanctioned by Parliament.

The Supreme Court rejected the notion that material in the codes used to control immigration fell within the Royal Prerogative under Common Law (and hence beyond the ambit of parliamentary immigration legislation). The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.

The court has also suggested that 40-year old procedures for passing immigration rules through Parliament are no longer fit for purpose.

In what looks like a panic measure, the Home Office has sought to counter the ruling by putting a statement on immigration rule changes, including the codes of practice, before parliament on Thursday 19 July to come into force on Friday 20 July.

The debacle has occurred because new immigration rules, according to the 1971 Immigration Act S.3(2) are supposed to be laid before both Houses of Parliament. If the rules, in effect statutory instruments issued by Governments, are “disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying”, then the Secretary of State must take them back and make suitable amendments. (the so-called “negative procedure” explained here)

But in the case of the Occupation Codes of Practice used to exclude physiotherapy assistant Hussain Zulfiqar Alvi, a Pakistani national, even this far from rigorous procedure was not used. Instead the document was issued by the Secretary of State to the UK Border Agency (UKBA) without parliamentary scrutiny and posted on UKBA’s website. It lists skilled occupations and salaries that immigrants must have to qualify to be sponsored by employers to work in Britain.

Read the rest of this entry

Theresa May’s immigration rules expel the rule of law

Posted on

The UK Government has instituted a remarkable constitutional innovation that redefines the concept of the rule of law. It has declared that the Government can tell judges how to interpret legal rules governing executive actions when those actions are challenged in court.

This is the implication of guidance attached to the new Immigration Rules laid (briefly) before Parliament and coming into force on 9 July 2012.

Home Secretary Theresa May has set out new rules on immigration but, crucially, severely curbed judges’ rights to interpret those rules in the light of Article 8 of the European Convention on Human Rights. She has done it on the basis of a misreading – or perhaps, more accurately, a misrepresentation – of case law on the immigration issue.

Since the Immigration Rules are not statutory (they are issued by the Government rather than passing through the full legislative process in Parliament) they can be struck down by courts if not in conformity with the European Convention. Article 8(1) says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is blamed by the government for preventing the deportation of undesirables, including criminals or potential terrorists, if they can claim a “family life” in Britain. This has irritated the current and previous Governments for years.

Notoriously, even the fact that a foreign man and his British girlfriend co-own a cat was once adduced to enhance a non-national’s “family life” credentials under Article 8 – at least according to Mrs May. Read the rest of this entry

%d bloggers like this: