Refugee & Family Immigration Detention Rights
Government prepares to review migrants' right to family life
http://www.migrantsrights.org.uk/, 6 July 2011
The news that the government is about to undertake a public consultation on family reunion policies for immigrants has been greeted with a barrage of inaccurate media reports. This is especially true when it comes to reporting on the current state of play in UK law and the use of Article 8 of the European Convention on Human Rights (ECHR), which sets out a right to privacy and family life
Seeing it as a clear barrier to the government's ability to regulate immigration, a number of newspapers including the Daily Telegraph, the Daily Mail and the Daily Express have been building the case against Article 8. The view taken by critics of Article 8 has been that the UK coalition government will only be able to regain control over immigration by reviewing its use of the ECHR
This perspective is based on two key arguments: firstly, that the government is powerless to act against "migrant criminals” and other "undesirable migrants”, because Article 8 is being used to thwart their deportation. And secondly, that the ECHR has been used to permit family reunification, even when opposed by the immigration authorities. In particular, reports have pointed to the case of a Burundian woman settled in the UK who won permission to bring her children here - a move not usually allowed
These arguments are nonsense, as is the implicit assumption that the general right of family reunification only exists because of the unwelcome intrusion of Article 8. The right wing media might not want to acknowledge it, but current controversy about the assertion of a right to family life against the political imperatives of immigration control goes back a long way. We need to get some of the facts straight.
UK law has always presumed that people who are settled in accordance with the standard regulations should be presumed to have a right to family reunification. Going as far back as the first set of rules made under the authority of the Immigration Act 1971 we see that, subject to the condition that they could "support and accommodate” their spouses and children up to the age of 18 and unless there were compelling reasons to the contrary, dependent family members would be permitted to join the primary sponsor in the UK. Furthermore, people who had established a family life in the country would normally be permitted to continue to enjoy it unless a decision to the contrary could be justified by reference to the greater public good.
This presumption seems unobjectionable enough and the basis for sound policy in this area of public life. However, for various reasons politicians have been limiting the exercise of the right to certain groups of people. This has, for example, been applied to the family members of all women resident in the UK unless they held citizenship by virtue of their birth in the country, whilst all legally settled men, irrespective of nationality, were allowed to bring over their family members.
This act of overt gender discrimination – almost unimaginable by today's standards – was thankfully defeated by the decision of the European Court of Human Rights (ECtHR) in the landmark case of Abdulazziz.
Governments have at times also shown their dislike for family reunification which involved people from the poorer regions of Bangladesh and Pakistan. In the 1970s and 80s tens of thousands of spouses and children were refused permission to join their sponsors in the UK on the grounds that they were held to be ‘not related as claimed'.
This strategy eventually became untenable when the advent of the DNA fingerprinting test provided indisputable evidence that, in the overwhelming majority of cases, the families were indeed related as they claimed to be.
These examples demonstrate that governments can be dangerous institutions when they are unleashed in the world of immigration policy. The record shows that their blundering and prejudices have done a lot of damage to families which, had the presumptions of UK law been properly applied, would have been able to enjoy their right to a family life.
Thankfully, as a partial redress we have the resource of Article 8. Sharp legal commentaries on the application of European law to family reunion tend to see ECtHR operating a balancing act, which on one hand acknowledges the rights of states to regulate immigration across their frontiers, and on the other recognises the need to ensure that basic principles of fairness and proportionality apply.
Critics talk up a direct opposition between the traditions of the nation state and the supra-national courts. But it is more accurate to conclude that the ECHR has played a critical role – not in creating rights which were previously unknown, but rather in ensuring that rights which were always in our system of law are applied with a sensible degree of consistency rather than in accordance with the whims of politicians.
As such, the forthcoming government consultation on family reunion for migrants will be yet another good reason for keeping Article 8 firmly in place.
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"Without the necessary authority”: The UK Government's new compassionate approach to child detention
http://www.opendemocracy.org.uk/, 6 July 2011
Clare Sambrook, novelist, journalist, pro-bono co-ordinator of End Child Detention Now, won the 2010 Paul Foot Award and the Bevins Prize for outstanding investigative journalism.
"You're a big boy now so I have to search you,” said the immigration officer to the five-year-old, donning latex gloves and patting him down at a Heathrow Airport detention facility run by outsourcing giant G4S.
The child had been booked into Terminal 4's "short term holding facility” as a "visitor” which meant that his detention would have gone unrecorded but for a surprise visit by two of Her Majesty's Inspectors of Prisons on 3rd March this year.
The boy, an EU national, had been returning home to Britain with his father, a non-EU national, after a family visit to the father's country of origin. The Inspectors noted that the child was detained "without the necessary authority”.
Their "Report on an unannounced inspection of the short-term holding facility at Heathrow Airport Terminal 4”, published today, found that in three months to February 2011 the lock-up had held 78 children, including eight unaccompanied minors. Their average stay was 9.9 hours, twelve children were held for more than 18 hours — the longest detention being 23.9 hours. Not all staff were CRB checked.
This, more than a year after the Coalition Government pledged to end the detention of children for immigration purposes, and six months after deputy prime minister Nick Clegg claimed it had been accomplished.
The five-year-old subjected to the latex "rub-down search” then witnessed his father's humiliation. The father's phone was confiscated, but, says the Inspectors; he was not offered the free telephone call to which he was entitled.
Instead of being taken to the family room, which had children's toys, books and posters (but no natural light nor access to fresh air), the father and child were held in the adult room.
"The father had not been formally interviewed by an immigration officer and was very distressed at the prospect of being refused entry and separated from his son,” said the Inspectors. "When we spoke with him he did not understand what was going to happen to him next. He broke down in tears in front of his child and the other detainees, which was humiliating for him and distressing for the child. After we advised the detainee that he was entitled to make a telephone call, he spoke to G4S who granted his request. The detainee's distress could have been alleviated had he been able to make the telephone call earlier.”
That these things happened directly under the gaze of HM Prison Inspectors suggests this might be UKBA and G4S on their very best behaviour.
Staff admitted to the Inspectors, "that they had not received refresher training in suicide and self-harm prevention” and "did not carry anti-ligature knives but a knife was attached to the first aid box in their office.” The Inspectors noted: "This could cause unnecessary delay in an emergency.”
The Inspectorate also reported today on Heathrow Terminal 3's lockup where, over three months to February 2011, 98 children had been held including eight unaccompanied minors. A child's average stay was 8.3 hours, with twelve children held for more than 18 hours – and one held for 30 hours.
Despite the long periods of incarceration, neither facility had beds. Adults or children could lie across chairs if they wanted to. "And even this did not give room for all to sleep,” said the Inspectors.
Although one third of the detainees at Terminal 3 and a quarter at Terminal 4 were women, there was not always a woman on the staff. "Rub-down searches” took place in an open office, "which was especially inappropriate in the case of female detainees”.
When detainees requested to shower, and if staffing levels permitted, they were put in an escort van and driven to another facility.
One member of staff at Terminal 3 told the Inspectors "of an incident many months previously when a detainee had been banging his head on the table and said: ‘Luckily we were able to put him on the floor and stop him doing it.'”
The Inspectors noted: "The use of three staff to pin the detainee to the floor to prevent possible self-harm seemed an over-reaction.”
Despite the large numbers of children being held, the Inspectors noted that staff had "inadequate knowledge” of the referral system "for identifying victims of human trafficking”.
Although there were some valid legal advice telephone numbers in the holding rooms, the Inspectors found "access to legal advice for non-English speakers was poor. Immigration officers did not always use professional interpreters when necessary, and did not always complete legally required documents correctly. Detainees could not fax a legal adviser freely.” Nor were they routinely offered the free phone call to which they were entitled.
So much for the "big culture shift within our immigration system” and the "new compassionate approach to family returns” prematurely celebrated in December by Nick Clegg.
Today's reports provoke discomfiting questions, such as:
How many trafficked children miss their one chance of rescue because staff lack proper training?
How many children are detained "without the necessary authority”, misleadingly listed as "visitors”, patted down and patronised by people who may or may not be CRB-checked?
And, if this is how immigration detention works when HM Inspectorate of Prisons is in the house, how do things go when nobody important is watching?
Deportation plans will still harm children, charity fears www.cypnow.co.uk, 11 May 2011 The Children's Society is concerned children will continue to suffer emotional distress under latest measures to deal with families awaiting deportation. Despite the end to child detention for immigration purposes, children can still be kept at short-term, pre-departure accommodation. Image: The Children's Society The government has pledged that by today (11 May) no children will be detained for immigration reasons in UK border agency removal centres. But they can still be kept at short-term, pre-departure accommodation. The charity is concerned that the "shocking experiences" of families detained for immigration reasons in the past will continue under these new measures. They are particularly concerned that families can still be held for up to a week in exceptional circumstances. Concerns about families being separated while they are being prepared for deportation also remain. To highlight its concerns it has released a report called What Have We Done? The Experiences of Children and Families in UK Immigration Detention. This looks at the experiences of 32 families detained before May 2010, when the coalition government pledged to end the immigration detention of children. Some families had medication removed and many children did not eat and lost weight, the report found. Sleeplessness and constant crying were commonplace among children detained. After their release families were blighted by ongoing emotional distress from their experience, the report adds. Bob Reitemeier, chief executive of The Children's Society, said: "It remains to be seen how exactly the new arrangements will be used. We will be paying particular attention to whether detention in pre-departure accommodation will be used as a genuine last resort, for the shortest time possible, and in the most exceptional cases. "It is not yet clear if it will be just another form of detention that harms children." Latest government figures for March show that six children and young people were detained for immigration purposes, five in removal centres and one in a short-term facility. Immigration minister Damian Green said: "Last year we announced a new process for family returns that ended the detention of children for immigration purposes. "Since then we have set out a new process which focuses on engagement with families and a safe and dignified return home. We have also appointed an interim family returns panel which puts children's welfare at centre stage. "We are establishing a family-friendly pre-departure accommodation for families and have appointed Barnardo's to provide the welfare and support services. This accommodation will only be used on the recommendation of the newly appointed independent chair of the family pane, who will consider all cases and the welfare of the family involved." Please click on this article to see original article 
Immigration Detention & Access to Phones
http://www.liberty-human-rights.org.uk/
Author: Emma Norton, Legal Officer
Earlier this year, Liberty received a flurry of concerned calls from welfare groups and advocates working with people in immigration detention. Without consultation, all detainees at one immigration detention centre, Tinsley House, had their mobile phones confiscated.
These were replaced with a new phone and network, run in conjunction with G4S (the private security firm running the centre) and with UK Borders Agency permission.
What's wrong with that, you might ask – the detainees still have a phone. But to appreciate this scheme's impact, you need to know a couple of things about immigration detention and access to phones.
First, people in such centres receive an allowance of 71p a day. From this they must buy things like stamps, toiletries and, crucially, phone credit. Access to cheap calls is vital – it allows these stressed and vulnerable people to keep in touch with loved ones, call their lawyers and retain some contact with the outside world.
Secondly, there is a presumption that those in immigration detention – not being criminals – should be allowed to keep their phones, subject to certain requirements. People find the cheapest deals, and their friends and family tend to be on the same network so they can benefit from the best-priced – often free – calls.
Under the scheme, the cost of calls became exorbitant. One gentleman we interviewed saw prices soar by a staggering 1,152 per cent. Another interviewee, with severe mental health problems (he was so distressed at being parted from his wife he couldn't bear to see her in person), had in his medical notes a clear direction that he should be encouraged to speak to his wife at length daily. He described speaking to her as a ‘lifeline to sanity' and his ‘only good medication'. The gentleman went from talking to her for two hours a day for free to ten minutes every other day for £2.50, if he was lucky.
Another had two young children, and telephoned them daily after school to hear about their day and every evening to read them bedtime stories. Overnight, he was prevented from doing so because of the sheer cost involved.
The scheme also meant people lost their personal phone number. The authorities pointed out that they gave people five minutes of free calls on the new phone, but this was quickly used letting contacts know the new number. Reception on the phones was apparently very poor. One befriender described trying to counsel a suicidal detainee while the line kept breaking up. Particularly nasty was the provision for high charges to 0800 and 0845 numbers – including MIND, Liberty and the Samaritans. These are often the last resort for the most desperate, and someone was making a fat profit out of them.
Most chilling was that this network could be shut down in the event of what the authorities called a ‘serious disturbance'. This would prevent people from calling their families, lawyers or journalists. Given the serious allegations coming out of immigration detention centres in recent years, this was very sinister.
Following threats of legal action from Liberty, and representations from welfare and befriender groups and the detainees themselves, UKBA abandoned the scheme. Both they and G4S conceded they hadn't consulted detainees or advocates. But neither party has acknowledged the serious implications involved.
We are happy people will now have their phones returned, but we remain very concerned at the willingness of G4S and UKBA to nod such schemes through, apparently on the QT. We will be watching
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'Undesirables' cannot be deported
The Independent, 28 June 2011
The Government cannot deport "undesirable" or "dangerous" immigrants who may face ill-treatment at home - however bad their crimes in the UK, human rights judges ruled on 28 June 2011.
In a test case ahead of more than 200 similar actions pending against the UK, the Strasbourg judges decreed that the UK's duty to protect people against torture or inhuman treatment is "absolute".
The case involved two Somalis facing enforced return to Mogadishu after receiving convictions in the UK for serious criminal offences.
The European Court of Human Rights awarded Abdisamad Adow Sufi and Abdiaziz Ibrahim Elmi, both currently in UK immigration detention centres, 14,500 euros and 7,500 euro respectively for costs and expenses in bringing the case.
Sufi, 24, claimed asylum in the UK in 2003 on the grounds that he belonged to a minority clan persecuted by Somali militia. His account was rejected as not credible and asylum refused.
Elmi, 42, arrived in the UK in 1988 and was granted leave to stay as a refugee in 1989, renewed indefinitely in 1993.
After convictions for a number of serious criminal offences - including burglary and threats to kill in Sufi's case, and robbery and supplying class A drugs cocaine and heroine in Elmi's case - they were issued with deportation orders. Their UK appeals that they risked being ill-treated or killed if returned to Mogadishu were rejected.
The European Court of Human Rights blocked their deportation pending a hearing of their appeals to the Strasbourg court.
Today the seven-judge court ruled unanimously that deporting them would breach the Human Rights Convention Article 3 which bans "inhuman or degrading treatment".
The ruling said: "The court reiterated that the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victims' conduct.
"Consequently, the applicants' behaviour, however undesirable or dangerous, could not be taken into account."
The judges said no one disputed that, towards the end of 2008, Mogadishu was not a safe place to live for the majority of its citizens. The situation had deteriorated since then.
The ruling cited the UK's own Asylum and Immigration Tribunal which acknowledged the dangers, while saying it was possible that individuals with connections to powerful people in Mogadishu might be able to live there safely. Anyone else being returned would face a real risk of persecution or serious harm, although those whose home area was in any part of southern and central Somalia might be able to go back in safety and without undue hardship.
Human Rights Watch described the situation in Mogadishu as "one of the world's worst human rights catastrophes".
The judges concluded that the general level of violence in Mogadishu "was of sufficient intensity to pose a real risk of treatment in breach of Article 3 to anyone in the capital".
The judgment described the case as the "lead case" against the UK, with 214 similar cases pending before the same court
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Refugee Council Advice Services update
http://www.refugeecouncil.org.uk/, 4 July 2011
The Refugee Council offices in London are now closed to drop-in clients. Instead Refugee Council operates an advice line where you can speak directly with a qualified and independent adviser free and confidentially in the language of your choice.
Call 0808 808 2255 or 0808 808 2259 (text phone) and follow the instructions to select the language required. Languages currently available: Kurdish Sorani, Farsi, Mandarin, Pashtu, Arabic, Tigrinya and English
They will give advice, information and support over the telephone or, if necessary, book face to face appointments for one of our offices in London, West Midlands, East of England and Yorkshire and Humberside (more information).
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New briefings on migrants and the Equality Act 2010
http://www.edf.org.uk/, 6 July 2011
The Equality and Diversity Forum has produced two new briefings on migrants and the Equality Act 2010.
The first was writen by REAP and is aimed at Migrant and Refugee Community Organisations. The briefing explains how the Equality Act 2010 applies to refugee and migrant communities, gives examples of when public authorities could be in breach of the Act and explains how MRCOs can use the Act to support service users. The briefing can be found here.
Please click on this link to see the first briefing
The second briefing is aimed at public authorities. The briefing provides a summary of the main provisions of the Equality Act 2010 as they apply to the functions of public authorities and explains how refugees and migrants are protected against discrimination under the Act and the extent of relevant exceptions. It also summarises the public sector equality duty and discusses how compliance with the duty should include consideration of issues affecting refugees and migrants. This briefing can be found here.