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Tribunal fee rise is a threat to migrants’ rights - read the letter published in The Guardian

Adam Pipe has co-signed the following letter with other leading immigration/human rights lawyers. This letter has been published in The Guardian.

We write to express serious concerns about the government’s proposals to significantly increase immigration and asylum tribunal fees. This increase, of up to 500%, will put justice beyond the reach of some of the most vulnerable. The House of Commons justice committee has expressed “considerable concern” about these plans and questioned the evidence upon which the government is basing its fees reforms. We urge the government to examine the findings of the committee properly and rethink its proposals, which will harm vulnerable people, including families and children.

The government must also seriously consider the responses it has received to its recent consultation. The increase in fees would disproportionately affect people from ethnic minorities and prevent those most in need from accessing justice. The quality of Home Office immigration decision-making remains poor in many cases, and this increase would prevent even those who do have a right of appeal from exercising that right. It would cost £4,000 for a family of five to appeal, clearly preventing the vast majority of immigrants from challenging unlawful decisions. The proposals exempt those in receipt of legal aid from paying; however, most immigration cases are out of scope for legal aid, therefore only a small minority will benefit from this.

We agree with the Equalities and Human Rights Commission that imposing court fees at the level proposed is likely to breach the European convention on human rights and may be unlawful. The government should be working to ensure justice for vulnerable people including minors and asylum seekers rather than making it harder for them to access courts. The consequences of such a denial of justice will be more parents separated from their children, victims of domestic violence left destitute and vulnerable people at risk of serious human rights abuses. Access to justice is fundamental to the rule of law and we urge the government not to proceed with this proposed increase in court fees.

  • Professor Sir Geoffrey Bindman QC
  • Lord Lester of Herne Hill QC
  • Professor Roger Smith
  • John Wadham Human rights lawyer
  • Stephanie Harrison QC Garden Court Chambers
  • Raza Husain QC Matrix Chambers
  • Stephen Knafler QC Landmark Chambers
  • Hugh Southey QC Matrix Chambers
  • Liz Barratt Joint head of immigration, Bindmans LLP
  • Jamie Beagent Partner, Leigh Day
  • S Chelvan No5 Chambers
  • Celia Clarke Director, Bail for Immigration Detainees
  • Nicole Francis Chief executive, Immigration Law Practitioners’ Association
  • Steve Hynes Director, Legal Action Group
  • Shoaib M Khan Human Rights Lawyer
  • Zane Malik 12 Old Square Chambers
  • Adam Pipe No 8 Chambers
  • Jane Ryan Bhatt Murphy Solicitors
  • Martha Spurrier Director, Liberty
  • Alison Stanley Joint head of immigration, Bindmans LLP
  • Steve Symonds Refugee and migrant rights programme director, Amnesty International UK
  • Solange Valdez Solicitor and director of the Project for the Registration of Children as British Citizens (PRCBC)
  • Adam Wagner One Crown Office Row Chambers
  • Colin Yeo Garden Court Chambers

We are immigration lawyers who are appalled at the increase in racist attacks and racist abuse that have been reported since the referendum. The status of EU nationals has not changed as a result of the vote in the referendum. It is now vital that every EU citizen living in the UK is given a cast iron legally binding commitment that their right of residence will be guaranteed whatever the constitutional arrangements coming out of the referendum vote.

Moreover, opting for fresh restrictions on immigration will not undermine racism, it will only feed it. David Cameron’s renegotiation put the removal of benefits from EU migrants at its heart and set in motion a horrible bidding war. We reap what we sow. Restrictions on EU migrants will set off further demands for restrictions on non-EU migrants who make up the majority of those coming to the UK. The vicious cycle will deepen.

Nor will restrictions limit the numbers, they will simply normalise the hostility. Immigration into Britain is going to continue and thank goodness for that. If the immigrants who work in our NHS, our schools, our businesses, were forced out of the UK, or made so unwelcome they started to leave, the consequences for the economy, the NHS and public services would be disastrous and tit for tat expulsions of British nationals from EU countries would beckon. The extension of the “points-based system” (PBS) for EU migrant workers would extend the massive red tape involved in the current PBS system. Worse, by tying every worker to a specific job it allows unscrupulous employers to browbeat and pressure those on a PBS visa, threatening to create divided workforces.

We want a Britain that welcomes immigrants and provides safety to refugees; we want a vibrant, multicultural Britain with real social justice, not the decay and decline suffered by so much of the UK’s population for 30 years or more. We have more in common than divides us. Let’s take that message into our communities, into our workplaces and on to the streets.

  • Ian Macdonald QC Garden Court Chambers
  • Edward Mynott Tribunal advocate
  • Mikhil Karnik Barrister, Garden Court North Chambers
  • John Nicholson Barrister, Kenworthys Chambers
  • Jonathon Holt Barrister, Garden Court North Chambers
  • Vijay Jagadesham Barrister, Garden Court North Chambers
  • Herbert Ekitok
  • Benjamin Williams Pupil barrister, Garden Court North Chambers
  • Rachel Evans WTB Solicitors
  • Jackie Mason Broudie Jackson Canter Solicitors
  • Clita Johnrose Immigration lawyer
  • Arshia Hashmi Simpson Millar LLP
  • Lucy Mair Barrister, Garden Court North Chambers
  • Richard Bednarek
  • Natalie Williams Barrister, Garden Court North Chambers
  • Kerry Smith Barrister, Garden Court North Chambers
  • Rob Worthington
  • Fazil Mustafa
  • Anisa Niaz Barrister, Kenworthys Chambers
  • Yasmin Weston
  • George Brown Barrister, Kenworthys Chambers
  • Shazia Khan Barrister, Kenworthys Chambers
  • Peter Simm
  • Denise McDowell Greater Manchester Immigration Aid Unit
  • Julian Bild
  • Gita Patel Barrister, Kenworthy’s Chambers
  • Julia Weatherall Barrister, Cathedral Chambers
  • Corin Timson Barrister, 2 King’s Bench Walk
  • Nilufar Miah TM Fortis Solicitors
  • Mark Schwenk Barrister, Kenworthy’s Chambers
  • Sumita Gupta
  • Emma Brooksbank Simpson Millar
  • Gary McIndoe Solicitor, Latitude Law
  • Shara Pledger Solicitor, Latitude Law
  • Gemma Wylie Chartered legal executive, Latitude Law
  • Alex Wright Solicitor, Latitude Law
  • Catherine Banks Caseworker, Latitude Law
  • Ryan Bestford Greater Manchester Immigration Aid Unit
  • Dr Tanzil Chowdhury Development worker, Greater Manchester Law Centre (Steering Group)
  • Helene Santamera Broudie Jackson Canter Solicitors
  • Stephen Medley-Daley Broudie Jackson Canter Solicitors
  • Bryony Rest David Gray Solicitors
  • Amy Stolting David Gray Solicitors
  • John Cahill Immigration Advice Service
  • Helen Smith North Star Law
  • Kate Ormsby Greater Manchester Immigration Aid Unit

Note on IM and AI (Risks –membership of Beja Tribe, Beja Congress and JEM ) Sudan CG [2016] (IAC)

Written by Stephen Vokes.

Emma Rutherford and myself represented AI in this case; the heading is a bit misleading as it is guidance for all Sudanese cases except for Darfur cases. In short this represents an advance on the previous guidance in HGMO (Relocation to Khartoum) Sudan CG [2006] 00062 because there is recognition by the UT that the overall human rights situation in the Sudan has deteriorated.

Do not be put off by the head note; what the Tribunal is saying is that it is a matter of individual factual case assessment in every Sudanese case whether an individual has a well founded fear of persecution. This is what a Tribunal judge should do in any event. However the range of potential risk victims is drawn much wider than before as there is a recognition that any member of the population failing foul of the government and state apparatus could be at risk of persecution. The key question for representatives is to show that the depth of experience of repression by their clients creates a real risk on return for them.

It is unlikely following this Country Guidance, that a one off arrest with no evidence of torture would suffice to found a well founded fear of persecution; nor a period of just harassment. This is seen as rather “normal” by the UT in respect of Sudanese dissidents and those thought to oppose the regime. However the more activity by an applicant, the greater the persecutory risk . This would apply to sur place activity, although here status and organising ability would indicate on the basis of the guidelines, the level of risk on return for an individual.

The decision is welcome on the basis there now is a recognition that there needs to be a sober assessment of the level of risk in each and every Sudanese case, rather than a non Darfuri having to explain why, becomes s/he comes from an area of the Sudan and are not a “risk profession” –see HGMO, they are unusually at risk.

James Fraczyk in unusual FTT appeal

One of James’ recent successful asylum appeals concerned an Appellant from Guatemala. The case was unusual given the country of origin (no Home Office guidance or UT case law exists for Guatemala), and demonstrates a variety of instructive points for practitioners.

Firstly, it was essential to obtain effective evidence establishing, in the absence of any UT authority or Home Office guidance, risk on return in the event of credibility being established.

Secondly, the need for an expert report was indispensable, not only for addressing issues of sufficiency of protection and internal relocation but also for bolstering the evidential weight of the country information evidence which was relied upon.

Thirdly, the expert report also, of course, attested to the reliability of documents exhibited on the Appellant’s behalf (e.g. police reports from the country of origin). Immigration lawyers are now familiar with this practice, given the requirements of Tanveer Ahmed [2002] UKIAT 00439. The form and content of such material is governed by Part 10 of the FTT and UT Practice Direction.

Fourthly, it was important to anticipate the Home Office raising points which had not been taken in the refusal (the SSHD did not take issue with sufficiency of protection or internal relocation within the RFRL).

The facts of the case were that the Appellant had nearly been assassinated as part of a political scandal involving extensive political corruption. The FTT judge held that “I find the appellant’s account plausible, credible, consistent and truthful.”

Home Office concedes on the meaning of "Residence" in relation to Paragraph 276B of the Rules

Written by Stephen Vokes

The Appellant was a foreign national student who had studied in the UK for around 9 and a half years. He achieved his doctorate. He then returned to his home country in Africa. However after a short break in his home country, he then entered as a visitor to attend his graduation ceremony. However after entering the country he changed his mind about returning home and applied for indefinite leave to remain (ILR) on the basis of being lawfully present in the UK for 10 years. The Home Office refused his application on the basis that he had not completed his 10 years residence at the date of their decision. The Appellant appealed to the FTT, who upheld his appeal on the basis;

* at the date of the hearing due to extant leave under section 3C of the 1971 Act the Appellant had completed 10 years residence.
* the Appellant had a genuine change of heart, and although his original intention was merely to visit, he had changed his mind whilst present in the UK.

Now the Secretary of State appealed, on the principal ground that his leave as a visitor did not come within the meaning of “residence” for the purposes of Paragraph 276B. In short he was admitted on a temporary basis and no provision was made for “switching” category. Permission to appeal was granted by UTJ Allen on this point.

However the difficulty with this legal argument is two fold;

1) “continuous residence” is defined in Paragraph 276A (a) as having existing leave to enter or remain; no category is specified.
2) this also appears in the Home Office Guidance and moreover the Guidance states that after 10 years lawful residence has been achieved, an Applicant can enter any lawful basis, and then claim ILR.

The thrust is that only lawful leave to enter is needed is relation to this Rule, and the demand for “residence”.

The Senior Presenting Officer after the UT hearing (which had been adjourned for lack of Tribunal time) sought guidance (from the Policy Directorate one presumes), and then proceeded to withdraw the appeal, conceding that the Appellant’s leave to enter was no basis in refusing his application under the 10 year Rule. Therefore it was accepted that his period in the UK as a visitor did count for the definition of “residence” for the purposes of Paragraph 276B of the Rules.