Access to Justice – a worthy cause amongst many…

This is a guest post from Sian Pearce. Sian is a Public Law Solicitor at Duncan Lewis Solicitors.

It’s legal walk season again – lots of lawyers walking relatively short distances and asking their friends, families, Linkedin contacts and anyone else they know to stump up cash to support ‘access to justice’.

So – what does that mean – and why should your fiver go to this cause instead of endangered animals, or refugee children or cancer?

It means keeping Law Centres and Advice Centres open, it means that some of the most vulnerable people in Britain can at least have a chance at getting their case heard, people who have nowhere else to turn to keep a roof over their heads, or food on the table, to keep their jobs or to stop their families being split across continents. The work these Centres do really does save lives.

But this is also about who we are as a society. The cuts to legal aid mean that for so many justice is a theoretical possibility, there, but only if they can afford to pay a lawyer or navigate the legal maze themselves. I believe that this cannot reflect the true heart of Britain, a nation that prides itself on its sense of fair play. By donating to support legal charities you are not just changing the lives of vulnerable people, you are showing that the people of Britain still believe in Justice and that she should be blind. Blind to the status, wealth, educational background or language spoken of those who come before her.

Please help keep Justice’s blindfold in place. Just this month.

http://uk.virginmoneygiving.com/team/DuncanLewisCardiff

Thank you

Immigration Act 2014 Comes into Force

The Immigration Act 2014 (Commencement No. 1, Transitory and Saving Provisions) Order 2014 brings certain aspects of the Immigration Act 2014 into force.

The order means that from today (14 July 2014) those applying for a driving licence must now meet residence requirements. It also means that driving licences can be revoked for anyone who currently holds a licence but does not meet the residence requirements.

More importantly, from the 28 July 2014 a number of provisions come into force. It is considered that these provisions will have a greater impact than those that come into force today. The provisions that come into force on the 28 July include:

  • The requirement that any bail application made within 14 days of removal directions must automatically be refused.
  • The public interest considerations that the Tribunals must consider when deciding Article 8 cases
  • The requirement that a human rights appeal against a certified refusal of a human rights claim made by a person liable to deportation must be made from outside of the UK (in order to guarantee an in country Right of Appeal the notice of appeal must be received by the Tribunal by the 27 March 2014)
  • The power for the SSHD to deprive a person of citizenship if she believes that their conduct has been seriously prejudicial to the vital interests of the UK

For more information on the above provisions please see here and here.

No date has been given for the commencement of the remaining provisions.

Court of Appeal rules on spouse minimum income requirement

20140714-084511-31511492.jpg

On the 11th of July 2014 the Court of Appeal handed down the eagerly anticipated judgment of MM v Secretary of State for the Home Department.

Background

The case challenged the legality of the financial requirements imposed by the Immigration Rules set for applicants who are settled in the UK and wish to bring their non-EEA national partner to the UK for settlement. The Rules stipulate that the applicant must earn a minimum gross annual income of £18,600 in order to meet the financial requirement, however as Blake J concluded in the High Court:

“to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full time employment the ability to be joined by their non-EEA spouses from abroad unless they happen to have wealthy relatives or to have won the lottery. This frustrates the right of refugees and British citizens to live with their chosen partner and found a family unless such modest earnings could be supplemented by any reasonably substantial savings, third party support or the future earnings or the spouse seeking admission. The executive can hardly be heard to say that the minimum adult wage is a manifestly inadequate sum to provide a basic standard of living over the subsistence threshold for a household without dependent children.”

Following the High Court’s decision the Home Office put on hold all in-country and entry clearance applications that fell to be refused on the basis that the £18,600 minimum income threshold had not been met.

For over 4000 families whose cases had been shelved and the thousands of others who were waiting to make an application, the eagerly anticipated Court of Appeal decision would ultimately dictate whether or not they were to be reunited with their families.

The Court of Appeal heard the case in March 2014 and handed down its judgment four months later.

The Judgment

Both Treacy LJ and Maurice Kay LJ concurred with the lead judgment of Aikens LJ. The court held that;

“The Secretary of State plainly is under a common law duty not to promulgate an IR that is discriminatory, manifestly unjust, made in bad faith or involves such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men. If she does promulgate such an IR, it can be struck down or the offending part can be severed.”

It is curious to note that the initial commentary concedes the fact that the financial requirements are indeed discriminatory. Aikens LJ went on to hold however that the correct test to strike down an Immigration Rule is that the Immigration Rule in question is

“incapable of being proportionate and so is inherently unjustified.”

In setting such a high threshold Aikens LJ has made it incredibly difficult for an Immigration Rule to be struck down.

Whilst accepting that the Rules are discriminatory to certain members of society (namely migrant families on a low income, women and those outside South East England) Aikens LJ found that this discrimination was nevertheless justified in the circumstances.

In addition, Aikens concluded that the exclusion of third party support was not unlawful.

What next?

The Home Office announced that in light of the decision, they would begin to process the 4000 applications that will now fall for refusal. An arguably premature resolution given that MM is currently seeking an extension from the Legal Aid Agency to appeal the decision in the Supreme Court. By contrast, had the Home Office been unsuccessful at the Court of Appeal, it is difficult to imagine that applications would have been processed so readily.

The impact of the decision is undeniably profound and will impact thousands across the UK whose hopes of being reunited with their families are crushed.

ht

This is a  guest post by Eleri Haf Davies. Eleri is a Public Law Caseworker at Duncan Lewis Solicitors.

On 10th June 2014, Home Secretary Theresa May presented the ‘historic’ Modern Slavery Bill to parliament. The primary aim of the Bill is to project a zero tolerance stance on human trafficking whilst the protection afforded to victims is made a secondary consideration.

The Home Secretary commented that,

“It will send the strongest possible signal to criminals that if you are involved in this disgusting trade you will be arrested, you will be prosecuted and you will be locked up.”

The Bill purports to strengthen the response of law enforcement and the courts by:

  • Consolidating and simplifying existing modern slavery offences into one Act.
  • Increasing the maximum sentence available for the most serious offenders from 14 years to life imprisonment, with those who have a previous conviction for a serious sexual or violent offence facing an automatic life sentence.
  • Introducing Slavery and Trafficking Prevention Orders and Slavery and Trafficking Risk Orders to restrict the activity of individuals where they pose a risk of causing harm
  • Strengthening law enforcement powers at sea and
  • Ensuring that perpetrators convicted of slavery or trafficking face the toughest asset confiscation regime.

It is clear that the Bill serves to pacify mounting public interest in tackling ‘modern slavery’ and indeed it can be no bad thing that politicians and legislators alike acknowledge the gravity of this truly heinous crime. Whilst it is often the case that punitive measures are an effective deterrent, in the context of human trafficking however, the balance between prosecution and protection is a delicate one.

It is widely accepted among the human rights community that an excessively punitive approach can impinge on the rights of victims where they themselves are mistakenly criminalised.

The Bill proposes to assert the rights of victims by:

  • Giving the courts new powers to order perpetrators of slavery and trafficking to pay Reparation Orders to their victims;
  • Extending special measures so that all victims of modern slavery can be supported through the criminal justice process. This covers screening of witnesses, giving evidence by live link, in private or video recorded;
  • Providing statutory guidance on victim identification and victim services;
  • Creating a statutory duty for public bodies including the police, local authorities and immigration personnel to notify the National Crime Agency about potential victims of modern slavery; and
  • Creating a statutory defence for victims of modern slavery so that those who are compelled to commit an offence are not treated as criminals by the criminal justice system.

As Human Rights Watch note, the Bill fails to address the gap in protection afforded to migrant domestic workers;

“In April 2014, a special parliamentary committee looking into the new bill recommended that the government restore the right for [migrant domestic] workers to change employer, having found that the tied visa “institutionalises their abuse.” But the government’s response today makes it clear that it is more concerned about the politics of migration than protecting victims.”

With regard to the proposal to create a statutory defence for victims, it should be noted that there are existing legislative and procedural mechanisms in place, including;

The EU Directive of the European Parliament (2011/36/EU) states at Article 8

“Non-prosecution or non-application of penalties to the victim Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2”.

Additionally, CPS Guidance advises prosecutors that when reviewing a case in which there are suspicions that the suspect might be a victim of trafficking they should be pro-active in causing enquiries to be made and obtain further information about the circumstances in which the suspect was apprehended.

The Guidance draws particular attention to cases where victims have been trafficked here specifically to commit criminal offences, such as:

  • Causing or inciting/controlling prostitution for gain: Sexual Offences Act 2003, ss 52 and 53;
  • Keeping a brothel: Sexual Offences Act 1956, ss 33 or 33A;
  • Theft (in organised ‘pick pocketing’ gangs) under Theft Act 1968, s1;
  • Cultivation of cannabis plants, under the Misuse of Drugs Act 1971, s6

The importance of CPS compliance with the Guidelines was emphasised in R v. O [2008] EWCA Crim 2835 and again in R v. LM [2010] EWCA Crim 2327.

However as senior policy advisor Pam Bowen asserts,

“Some trafficked victim’s experiences are likely to be outside the knowledge and experience of prosecutors. For example young female victims may be subject to cultural and religious practices such as witchcraft and juju rituals inherent in their culture which binds them to their traffickers through fear of repercussions.

Other trafficked victims may be held captive, physically and sexually assaulted and violated, or they may be less abused physically but are psychologically coerced and are dependent on those who are victimising them”.

Additionally, Bowen submits that even where a defence for duress is not strictly applicable, prosecutors should take the public interest into consideration before issuing a conviction.

Whilst there are well-established legislative and procedural safeguards in place, their implementation is varied and often ineffectual due to the lack of guidance on the complex issues affecting trafficking victims. It is encouraging to note that the Bill proposes statutory guidance on victim identification, although we are given no indication as to the extent and nature of the guidance.

A renowned and highly successful approach to prevention of trafficking is the ‘Nordic model’ as adopted by Sweden, Norway and Iceland. It briefly comprises a set of laws and policies that penalises the demand for commercial sex while decriminalising individuals in prostitution and providing them with support services, including help for those who wish to exit prostitution. The Nordic model has two main goals: to curb the demand for commercial sex that fuels sex trafficking, and promote equality between men and women.

As stated by Equality Now;

“Sex trafficking does not just exist because its victims are vulnerable – it exists because there is a demand for commercial sex that traffickers can exploit and profit from. Thus, addressing the demand for commercial sex is a key component of any plan to prevent sex trafficking and sexual exploitation.”

The International Labour Organisation also comment;

“The Nordic model challenges this construct and tries to redress these inequalities by promoting women’s and girls’ right to safety, health and non-discrimination, and by challenging men’s perceived – but non-existent – “right” to buy women’s bodies for sex. Unsurprisingly, 3 of the top 4 countries with the highest level of gender equality have adopted the Nordic model”.

In early 2014, the parliaments of the European Union and the Council of Europe both adopted non-binding resolutions recommending that member states consider the Nordic Model. Human Rights Organisations are calling for legislators to adopt this progressive approach, which recognises the realities of trafficking and holds the rights and welfare of victims at its forefront.

Conclusion

The success of the Bill will undoubtedly turn on its implementation however, where even greater powers are afforded to law enforcement and with prosecution at the heart of the proposal, it is difficult to see how, in the absence of appropriate training, the rights of victims will be upheld.

The ‘Modern Slavery Bill’: Landmark legislation or wilful neglect of victims?

Tabrizagh & Others-Dublin II Italy Test Cases refused

10627Italian_flag

The High Court has today refused the Judicial Review test cases of Tabrizagh and Others that challenged the removal of the claimants to Italy on the grounds that it would breach their Article 3 ECHR right to freedom from inhumane or degrading treatment.

The test cases were identified following the Supreme Court case of EM(Eritrea) in order to determine the issue of the adequacy of reception conditions in Italy. The test cases were heard by Mrs Justice Laing on the 14 and 15 May 2014 with the judgement handed down today (11 June 2014)

The Claimants in the case had all made asylum claims in the UK and had either claimed asylum or been in Italy prior to claiming asylum in the UK. The Claimant’s asylum claims had all been refused by the Secretary of State and certified on the basis that they could be returned to a safe third country, namely Italy, under the Dublin Convention. The Claimants argued that they should have an in-country right of appeal against their removal to Italy, because their removal to Italy will expose them to a real risk that their Article 3 ECHR rights would be breached.

In a 38 page judgement, Mrs Justice Liang dismissed the Claimant’s arguments that reception conditions in would breach the the Claimants’ Article 3 rights regardless of their profile and that in each specific case that there was no evidence  on which the First Tier Tribunal could find that each Claimant would be at a real risk of article 3 ill treatment on  return to Italy

 At paragraph 190 Mrs Justice Liang concluded:

“I have no hesitation in concluding that on the basis of the material very recently considered by the Secretary of State, which is the material which I have considered, these claims would be bound to fail in the FTT. The Secretary of State lawfully certified these claims. I dismiss these applications for judicial review. “

Those representing the Claimants have confirmed their intention to apply for permission to appeal this decision to the Court of Appeal.

This case however has wide reaching consequences due to the number of challenges against removal to Italy that were waiting to be considered following the outcome of this case.

Immigration Act 2014- Part 2

This is the second of a set of posts intended to summarise the changes that the new act will bring into force. Future posts will also deal with the changes in more detail.

Access to Services

The new Act puts limits on the services that those with no immigration status can access and puts an obligation on those who provide certain services to ensure that those accessing the services hold leave to remain in the UK.

One of the more controversial aspects of the Act prevents those who require leave to remain to be in the UK and do not hold it from entering into a residential tenancy agreement. The Act also imposes a fine of up to £3000 on any landlord or letting agent that allows those without any status to rent their property. A landlord or their agent is also liable to be penalised if a person’s leave to remain expires whilst they are renting the property.

The new Act also gives the Secretary of State the power to impose a charge for the NHS on those applying for immigration permission, with immigration permission being defined as entry clearance or leave to enter or remain.

The new Act imposes an obligation on banks and building societies to check the Immigration Status of those wishing to open a bank account and prevents them from opening an account for anyone who requires leave to remain in the UK and does not hold it.

The Act inserts a Residence requirement for those applying for a driving licence meaning that they have to be lawfully resident in Great Britain. The Act also provides for the revocation of driving licences on immigration grounds for those who are not lawfully resident in Great Britain. 

 

Marriage and Civil Partnerships

The Immigration Act sets out the procedure that should be followed if a proposed marriage is referred to the Secretary of State by a registrar when they suspect it to be a sham marriage. The Act puts an obligation on the Secretary of State to make a decision whether or not to investigate the marriage or civil partnership.

 

If you have any comments feel free to leave them below.

 

Immigration Act 2014- Part 1

The Immigration Bill was given Royal Assent on the 14 May 2014 making it the Immigration Act 2014. At the time of writing there is no date at which the Act will come into force. The new legislation brings about a raft of changes that will fundamentally alter the UK’s immigration laws. This is the first of a set of posts intended to summarise the changes that the new act will bring into force. Future posts will also deal with the changes in more detail.

Removal

The new Immigration Act intends to simplify the law relating to removal by condensing the numerous current provisions relating to removal into one power of removal.  The new power of removal gives the Secretary of State or an immigration officer the power to remove a person from the UK if they require leave to enter or leave to remain but do not have it.

Appeals

The number of decisions that a can be appealed will be reduced from 17 to 4 and the number of grounds of appeal will also be significantly reduced. When the new legislation comes into force only the following decisions will be able to be appealed:

  • the refusal of asylum
  • the refusal of humanitarian protection
  • the refusal of a human rights claim
  • the revocation of a person’s protected status

The refusal of asylum or humanitarian protection can only be appealed on the grounds that the refusal:

  • would breach the UK’s obligations under the Refugee Convention
  • would breach the UK’s obligations in relation to persons eligible for a grant of humanitarian protection
  • would be unlawful under section 6 of the Human Rights Act 1998

The refusal of a human rights claim can only be appealed on the ground that it is unlawful under section 6 of the Human Rights Act 1999.

The revocation of a person’s protected status can only be appealed on the grounds that the revocation

  • would breach the UK’s obligations under the Refugee Convention
  • would breach the UK’s obligations in relation to persons eligible for a grant of humanitarian protection

Bail

The new Act stipulates that bail cannot be granted in the following circumstances:

  • removal directions are in place and removal is within the 14 days of the date of the decision on whether the person should be released on bail.
  • an application for bail has been refused in the past 28 days and there is no material change of circumstances

All in all the above changes are rather fundamental to the current immigration law in the UK, especially the new law with regard to appeals.

If you have any comments feel free to leave them below.