The Weekly Round-Up: How far should the UK go to help Ukrainian refugees?

7 March 2022 by Calla Randall

In the news:

Russia’s invasion of Ukraine has dominated the news since the conflict began. The human rights implications of the conflict will be far reaching and devastating, and this Weekly Round-Up will no doubt examine the impact of events as they unfold. This week, our focus is on the UK government’s approach to Ukrainian refugees. The Home Office is still insisting that only those refugees with family ties to the UK will be able to satisfy visa requirements to enter through the ‘Ukraine Family Scheme’. Those who successfully use this route will have the right to work and to claim benefits. However, they will not be able to access other assistance, such as accommodation, as was offered to refugees from Afghanistan, for example, because the Home Office assumes they will be offered support by UK relatives. This approach has been widely criticised as unduly restrictive, given that many European countries have dropped their visa requirements altogether so as to enable a greater number of Ukrainians quickly to reach safety. The Home Secretary rejected this more permissive policy earlier this week, arguing that security and biometric checks imposed by the visa system were essential to prevent extremists and Russian agents entering the UK. But with one million refugees reportedly having fled their homes already, and four million more predicted, many campaigners have pointed out that a fast route to safety is urgently needed. On Friday, the Home Office stated that they were working on an ‘unlimited sponsorship route’ which would not be dependant on family ties, but it remains unclear when this will be launched, or what support it will offer.

In other news:

• The House of Lords has defeated the controversial Nationality and Borders Bill for the fourth time, removing clause 11. This measure would have divided refugees into two groups depending on how they arrived in the UK, potentially excluding those who took a route outside the law. For example, those who arrived on small boats through the Channel could have their asylum application automatically ruled inadmissible, face up to four years in prison, be banned from accessing public funds, and have family members banned from joining them. Peers had previously struck out a clause allowing the government to strip individuals of their British citizenship without warning. The changes made by the Lords will now be sent back to the Commons, who can either accept or amend them. 
• A leaked report has suggested that the Environment Agency has only prosecuted 7% of the serious incidents of pollution investigated between 2016 and 2020. Agents within the organisation prepared case papers for 495 serious incidents in the period, all of which they recommended for prosecution. However, only 35 cases actually reached court after managers intervened. The others were either dropped entirely, or dealt with using less serious sanctions such as a warning letter. These were all incidents of the most serious form of waste pollution, for example, those involving illegal discharges of raw sewage, and some incidents were known to be perpetrated by organised crime groups. Workers within the Agency have linked the lack of action to the severe cuts to the Agency’s resources. The Environment Agency responded to the report by stating that they follow the Code for Crown Prosecutors, which states that prosecution should only be pursued where there is a realistic prospect of a successful conviction, and when it is in the public interest.
• The Department of Work and Pensions (DWP) has been sent a letter before action by the Greater Manchester Coalition of Disabled People (GMCDP) and non-profit legal group Foxglove, who claim that the department’s use of a computer algorithm to decide who should be investigated for fraud unlawfully discriminates against disabled people. The two groups claim that there is a lack of transparency about how the algorithm works, and called on the DWP to explain how it prevents discrimination in its use of the algorithm. The DWP responded by saying that human agents always review cases of suspected fraud, and thus the effects of the algorithm were being carefully monitored. The government’s statement on Transparency in Automated Decision making can be found here.

In the courts:

• U3 v The Secretary Of State for the Home Department [2022]: The Special Immigration Appeals Commission (SIAC) dismissed an appeal by U3, a joint British-Moroccan citizen, against the decision of the Home Secretary to remove her British citizenship in 2017, and prevent her entry clearance in 2019. U3’s citizenship was withdrawn because the Home Office determined that her links with ISIL in Syria implied that she posed a national security risk. In 2019, U3’s children were repatriated to the UK, and U3 sought entry clearance to be reunited with her children, relying on her Article 8 right to respect for her private and family life. Entry clearance was denied, with the Home Secretary claiming that her Article 8 rights were not engaged, and even if they were, her separation from her children was proportionate to the risk she presented to national security. The key issues in this appeal were as follows. First, on what grounds could the SIAC interfere with the SSHD’s decision; Second, whether U3 in fact posed a risk to national security, given that if she did, precedent established that the separation from her children was likely to be proportionate. Concerning the first issue, the court found, following Begum, the SIAC can interfere with the SSHD’s decision even where it concerns national security on the usual grounds available for judicial review. Thus if it was shown that the decision was flawed according to the public law standard of review, and the outcome, but for the error, would have been different, the SIAC could reverse the decision. On the second issue, counsel for the Claimant argued that given the accepted factual evidence of the coercive and abusive relationship U3 had with her husband, with whom she travelled to Syria in 2014, her decision to live in an ISIL-controlled part of Syria did not demonstrate that she was ideologically aligned with ISIL, nor that she had become radicalised. However, the court found that the SSHD could rationally find that U3 herself was aligned with ISIL in light of evidence that she left for Turkey of her own accord, and that she had a good knowledge of the ideology of the group and of the atrocities it had committed. Given this finding, the SSDH’s decision was proportionate, and the appeal was dismissed.

On the UKHRB:

• David Burrows discusses the new Divorce, Dissolution and Separation Act.
• Nicola Logan explores the case of R (on the Application of the Counsel General for Wales) v Secretary of State for business, Energy and Industrial Strategy [2022] EWCA Civ 118, concerning devolved powers.