The Weekly Round-Up: are immigrants and asylum seekers getting their day in court?

19 April 2021 by Calla Randall

In the news:

The rights of immigrants and asylum seekers have been at the forefront of the news this week, with the Home Secretary coming under fire both in the courts and in the political arena. On Wednesday, a landmark court ruling held Ms Patel accountable for failures properly to investigate deaths among asylum seekers at detention centres. The case concerned two Nigerian nationals, one of whom was found dead in Harmondsworth immigration centre in 2019. His friend, Mr Lawal, was a key witness in the investigation of the death, but the Home Office sought to deport him before he could give evidence. The court held that the Home Secretary’s initial policy, which sought to remove Mr Lawal, its replacement, applied from August 2020, and the current policy, were unlawful and breached human rights because they failed to ensure that those who had relevant information would be able to give evidence before removal proceedings were commenced, thus frustrating inquiries into immigration centre deaths. Days later it was reported that this may be a widespread problem, with suggestions that scores of people had been prevented from giving key evidence to police investigations as a result of early deportation. While Ms Patel was warned that this practice must be curbed by a coroner in August, it is suggested that her response did little to address the problem.

In further news concerning the treatment of asylum seekers in the UK, concerns have been raised as dozens more people have been moved to Napier Barracks, an army camp which was repurposed as asylum accommodation. The decision to house often vulnerable people in the barracks was widely criticised after reports of strict curfews, poor hygiene provision, and a severe Covid-19 outbreak in January. A court case concerning the legality of such housing will be heard this week. While the barracks were emptied at the beginning of April, following the Covid outbreak, the Home Office began moving people back in last week, with no new measures imposed to improve the safety of the accommodation. Lawyers, campaigners, and the NHS, have warned of the likely severe consequences.

In other news:

• Many of the contributors to the Government’s controversial report on Race and Ethnic Disparities, published at the end of last month, distanced themselves from its findings at the beginning of this week. The report, apparently conducted by an independent body of commissioners, controversially suggested that while racial injustice still exists in the UK, it has a minimal impact on the ability of individuals to succeed when compared to factors such as socioeconomic background, geography, and culture. In compiling the report, the Commission gathered information from a number of organisations and individuals, subsequently listed as ‘stakeholders’. However, many of those thanked for their contribution have publicly opposed the report and its findings, asserting that the information they supplied was ignored or misunderstood, particularly in the report’s conclusions. This came just a day after some commissioners accused Downing Street of selectively editing the report with the aim of downplaying the severity of racial discrimination in the UK. It has been suggested that several of the commissioners who were supposedly in charge of producing the report were not given access to the final version before it was published; one commissioner accused the Government of ‘bending’ the report to create a ‘more palatable’ narrative.
• A cross-bench coalition of Peers in the House of Lords has conclusively defeated the Government’s overseas operations bill which sought to set a five-year limit on bringing prosecutions of war crimes and torture against soldiers serving overseas. The Government argued that this limit was necessary to prevent soldiers from being subjected to ‘vexatious prosecutions’ many years after their alleged crimes. However, campaign groups have argued that cases concerning war crime and torture can take years to put together, and this limit would simply serve to deny victims justice. The amendment passed on Tuesday, which excludes the time limit on prosecutions from the bill, will be put back to the Commons later this month.

In the courts:

F, Re (Assessment of Birth Family) [2021] EWFC 31: The High Court ruled that a local authority is not under a blanket obligation to assess the birth parents of an adopted mother as potential carers for her child, but rather the suitability of such an assessment will depend on the particular circumstances of individual cases. In this case, the local authority had taken the mother’s child, F, into foster care after F had sustained injuries falling out of a pram. The local authority then began to construct a care plan for F, which involved assessing the mother’s family to find potential carers. However, Cobb J ruled that birth parents of the mother did not automatically fall within the definition of ‘family’ under the Children’s Act (1989) Part III, and so it was at the discretion of the local authority on the particular facts to decide whether such an assessment should be made. Furthermore, the biological family did not have an Article 8 right to a family life with F because this is not established on the basis of biological kinship alone and their interactions with F were too limited to establish such a right.

National Union of Professional Foster Carers v The Certification Officer [2021] EWCA Civ 548: The Court of Appeal allowed the appeal of the National Union of Professional Foster Carers, ruling that foster carers should be permitted to unionise. The central question was whether the accepted exclusion of foster carers from the meaning of a ‘worker’ under the Trade Union and Labour Relations (Consolidation) Act 1992 Act led to breaches of their Article 11 rights under the ECHR, namely the freedom of assembly and association, including the right to form trade unions. The Court of Appeal held that foster carers were in an employment relationship and so Article 11 rights were engaged, and that their Article 11 rights were breached in that they could not invoke compulsory recognition under the 1992 Act, which would significantly interfere with the organisation’s core functions. The judge was clear that foster carers were not being given independent employment rights, which is seen by many people to be highly problematic, but rather a group right to unionise and to gain official recognition for collective bargaining purposes. Lord Justice Underhill described this as a ‘wedge [which] opens a crack no bigger than the effect of Convention rights requires’. 

GA & Ors, R (on the application of) v Secretary of State for the Home Department [2021] EWHC 868 (Admin):The High Court held that the Passport Office had been wrong to refuse to issue passports to a UK mother’s four children without the written consent of their father, who lived in a different country. The defendants had insisted on written consent because a passport can only be issued with the consent of the person with parental responsibility. In this case, because the father resided in a different country, where three of the children were born, the 1996 Hague Convention applied. The Convention states that parental responsibility must be assessed according to the laws of the country where the children typically reside, in this case the country of the father’s residence. In that country, the father had sole parental responsibility. However, Chamberlain J found that the decision was both irrational, and fitted within the permitted derogation from local law in the Hague Convention. It was irrational because the father had issued a letter giving consent for the children to travel from their country of residence; the court found the letter gave the mother authority to apply for passports on behalf of her children. Local law could be set aside because Article 22 of the Hague Convention permits derogation where applying local law would be manifestly contrary to public policy; Justice Chamberlain found this condition was satisfied in that local law created indirect discrimination on the basis of sex and was incompatible with the mother’s Article 8 and 14 rights under the ECHR.

On the UKHRB

• Rosalind English discusses the ramifications of imposing mandatory vaccinations for care home workers.
• In a new episode of Law Pod UK, Emma-Louise Fenelon talks to Harriet Wistrich, the founder of the Centre for Women’s Justice, about the ways in which the criminal justice system is failing women.
• Today Law Pod UK publishes the latest in Professor Barnard’s series 2903, reviewing the hundred + days since the United Kingdom left the EU.