The Weekly Round-Up: Migrant Rights, Virginity Testing and Racism

20 July 2021 by Calla Randall

In the news:

Immigration and migrant rights have been at the forefront of the news this week. An investigation has revealed that many undocumented migrants in the UK are being denied access to a vaccine, even though NHS England policy states that ID is not required to register with a GP (needed to book a jab). The vaccines minister, Nadhim Zahawi, confirmed that the vaccine was available to everyone, regardless of immigration status, but the report suggests that in reality, the majority of GPs are refusing registration, and are providing inaccurate information about the necessity of identity documents. The report highlights the danger this practice poses to the health of migrants and the general population in aiding the spread of the virus.

The Home Office has been forced to pay out £9.3 million in compensation this year in response to over 300 cases of unlawful detention. This amounts to a 35% rise in a year. Bella Sankey, Charity Detention Action’s director, has warned that these figures are likely to increase considerably with the Home Secretary’s proposed Nationality and Borders Bill, which aims to process asylum seekers in offshore centres. However, the Home Office stated that it was ‘committed to learning lessons from any case where we concede or the courts deem unlawful’ to reduce the number of unlawful detentions in the future. 

Immigration lawyers are preparing to challenge what they believe is an illegal, undisclosed change of policy by the Home Office in which migrants entering the UK on boats are immediately detained in immigration removal centres, rather than being admitted to asylum accommodation while their claims are processed. Director of public law and immigration at Duncan Lewis, Toufique Hossain, has labelled this an ‘abuse of power’, particularly given claims that many of the migrants are extremely vulnerable. However, the Home Office responded by stating that people were only detained where there was a reasonable chance that they could be removed quickly, and where ‘evidence of their vulnerability is outweighed by immigration considerations’.

In other news:

• A clause has been introduced by Conservative MP Richard Holden into the Health and Care Bill, which had its second reading on Wednesday, that will ban ‘virginity testing’: medical procedures in which women are examined to see if their hymen is intact, or undergo surgery to repair it. The ban would mean that doctors or midwives caught carrying out the procedures could be imprisoned. Both the World Health Organisation and the United Nations have identified virginity testing as breaching fundamental human rights, not least because there is no medical evidence that the examination can actually determine whether a woman has had sex. The ban is also supported by the Iranian and Kurdish Women’s Rights Organisation.
• The Prime Minister announced last week that online racist abuse of footballers will result in the perpetrators being banned from matches for up to ten years. This closes a legal loophole, as previously banning orders did not cover offences that took place online. The abuse directed online towards England players after the Euro 2020 final has resulted in significant pressure to tighten laws on online abuse in the forthcoming Online Safety Bill. However, the Bill has been considerably delayed, and it is unclear when it will come into force.
• The Department for Work and Pensions (DWP) admitted on Monday, the day before a legal challenge was to be heard in the High Court, that its practice of cold calling benefit recipients to encourage them to accept less money than they were legally entitled to, and to drop appeals against the reduced amount, was wrong, and agreed to rewrite their policies. The claim was brought by a woman suffering from severe bipolar disorder who was persuaded to accept a lesser amount of benefit, after being pressurised to accept the offer quickly on the phone, a practice which her lawyers labelled ‘unfair, unlawful, and discriminatory’. A spokesperson for the DWP stated that their guidance on telephone calls had been improved to ensure that recipients’ rights were clearly stated.

In the courts:

Sanambar v Secretary of State for the Home Department [2021] UKSC 30: The Supreme Court held that the Upper Tribunal had been correct in finding that an Iranian national with indefinite leave to remain could be deported without breaching his Article 8 rights (respect for private and family life). The deportation was considered to be in the interests of the public good after he committed a number of serious crimes including robbery at knifepoint. The appellant was relying on an exception in the Immigration Rules which stated that deportation is not required where a foreign criminal has been resident in the country for most of their life, are socially and culturally integrated, and in case they would significantly struggle to become integrated in the country to which they would be deported. The Supreme Court found that the ‘Üner criteria’, which identified a number of factors to be considered in the balancing exercise between Article 8 rights and the public good, do not need to be considered separately to the criteria established in Maslov v Austria, which apply where an individual has spent most of their childhood in the host country, and which sets a higher bar to justify expulsion. Rather, the appropriate assessment was holistic, taking into account all of the factors established in the caselaw. In particular, both the severity of the offences and the high probability of reoffending, together with the appellant’s ability to speak Farsi and his mother’s social connections in Iran, resulted in the deportation being necessary and proportionate for the public good in the prevention of crime.

Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam): The High Court denied an application by Wigan Borough Council to extend an interim deprivation of liberty order which had enabled a nine year old boy (Y) with several mental health disorders to be placed in a locked hospital room and subjected to frequent chemical and physical restraint. Y was removed from his father’s care after reports of neglect and abuse, but the authority could not find an appropriate placement for him, given his significantly challenging behaviour. Justice MacDonald found that despite the lack of a suitable alternative placement for Y, the care regime was not in his best interests, as it was ‘demeaning and … brutal’, and was therefore in breach of Y’s Article 5 rights under the ECHR, the right to liberty and security. Justice MacDonald found that the care regime was the most severe ever seen by the court, and the lack of other options did not justify the continuation of the restrictions, given that the local authority had a duty to promote Y’s welfare while he was in their care.

London Borough of Lambeth v Grant & Ors (Rev 1) [2021] EWHC 1962 (QB): Mr Justice Chamberlain granted a possession order to Lambeth Council against campaigners representing two groups, ‘Truth and Justice’, and ‘Lovedown’, camped out on Clapham Common. It was found that while the granting of the possession order would interfere with the rights of the occupiers under Article 10 and 11 of the ECHR, this interference was of a very limited nature, as they had been able to protest on Clapham Common for nearly a month, and could still engage with the public via other means. Furthermore, the interference was necessary and proportionate because the occupiers were undermining the public’s right to use the outdoor space, particularly important given Covid-19 restrictions, and were in breach of the Byelaws governing the use of the space. While Justice Chamberlain considered making an order enabling occupation until the 19^th of July, given that some of the occupiers, namely, those protesting against Covid-19 restrictions, might decide their possession was unnecessary after that date, the disparate nature of the protest groups led to the conclusion that there was unlikely to be a group-wide dissipation on that date.

On the UKHRB:

• LawPodUK publishes a new episode where Emma-Louise Fenelon talks to two authors, Rachel Francis and Joanna Fleck, about their book, Vicarious Trauma in the Legal Profession: a practical guide to trauma, burnout and collective care.
• Frederic Jones-Morton discusses the recent case of SC, CB and 8 children, R. (on the application of) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26 (9 July 2021) concerning the two child limit on child tax credit.