Immigration Barristers' Blog

The Court of Justice of the European Union has given an Opinion on what constitutes an 'act of persecution' for the purposes of recognition of refugee status for asylum seekers.

Under minimum standards established for all member states, the recognition of refugee status requires that the third country national concerned faces a well-founded fear of persecution in his country of origin for reasons of race, religion, nationality, political opinion or membership of a particular social group. The concept of an act of persecution covers serious acts which, on account of their nature or repetition, constitute a severe violation of basic human rights, in particular indefeasible rights.

The Federal Administrative Court of Germany had asked the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of the directive.

In his Opinion, Advocate General Bot recalled that the aim of the common European asylum system is not to grant international protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the conventions on the protection of human rights in his country of origin, but limits the recognition of refugee status to an individual who may be exposed to persecution in his country of origin, that is to say a serious and intolerable attack on his person and, in particular, his indefeasible rights, and whose life has become intolerable in that country.

Therefore, the Advocate General states that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ within the meaning of the directive where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom in his country of origin, runs a real risk of being executed or subjected to torture, or inhuman and degrading treatment, being reduced to slavery or servitude, or being prosecuted or imprisoned arbitrarily.

In that context, it is for the authorities responsible for examining the application for asylum to verify specifically the rule invoked in the country of origin and the repressive practice in a broad sense.

Recent data released by Eurostat, the statistical office of the European Union, has revealed that the number of asylum applicants registered in the EU27 rose to 301 000 in 2011.

It is estimated that around 90% of these were new applicants, and around 10% were repeat applicants. In 2010, there were 259 000 asylum applicants.

In 2011, the main countries of citizenship of these applicants were Afghanistan (28 000 or 9% of the total number of applicants), Russia (18 200 or 6%), Pakistan (15 700 or 5%), Iraq (15 200 or 5%) and Serbia (13 900 or 5%).

In 2011, the highest number of applicants was registered in France (56 300 applicants), followed by Germany (53 300), Italy (34 100), Belgium (31 900), Sweden (29 700), the United Kingdom (26 400), the Netherlands (14 600), Austria (14 400), Greece (9 300) and Poland (6 900). These ten Member States accounted for more than 90% of applicants registered in the EU27 in 2011.

In some Member States, a large proportion of the applicants came from a single country. The Member States with the highest concentrations were Poland (63% of the applicants came from Russia), Latvia (52% from Georgia), Luxembourg (44% from Serbia), Lithuania (43% from Georgia), Bulgaria (39% from Iraq) and Hungary (38% from Afghanistan).

In 2011 in the EU27, 237 400 first instance decisions were made on asylum applications. There were 177 900 rejections (75% of decisions), 29 000 applicants (12%) were granted refugee status, 21 400 (9%) subsidiary protection and 9 100 (4%) authorisation to stay for humanitarian reasons.

In this case, the Court of Appeal discussed whether or not there is a 'near miss principle' in Article 8 cases.

People refused leave to remain in the country due to not meeting the requirements of the Immigration Rules often argue on appeal that their removal would breach their human right to respect for private life. Since 2010, an increasingly common argument has been that if someone nearly meets the requirements of the Rules but has fallen just short, it would be disproportionate to remove them, and so a breach of Article 8. This approach can be very useful, for example, for appellants under the Points Based System whose bank accounts fell a few pence below the required balance for a short time.

In Miah, the Court of Appeal stated that there is no near miss principle, and that the previous case law that suggested there was is not binding because the statements in question weren't part of the ratio decidendi - the reasons why the case was decided the way that it was. At first glance, this appears to be bad news for appellants who nearly meet the Immigration Rules but still fall just short. However, a careful reading indicates that the consequences are not actually as far reaching as that.

To understand the implications of Miah, it is essential to appreciate what Article 8 involves. To win under this Article, an appellant must show that removing them from the UK would be disproportionate to the Home Secretary's aim in removing them. Apart from in cases about the deportation of criminals, the aim will almost always be the economic wellbeing of the country through the maintenance of effective immigration control. In simple terms, assessing proportionality is a balancing act; the court must decide how much weight is to be placed on the Home Secretary's aim, and how much weight is to be placed on the reasons cited for not removing the appellant. If the appellant's reasons carry more weight, then removing them would be disproportionate and would breach Article 8.

In Miah, the main appellant fell just short of meeting the Immigration Rules; it was therefore a 'near miss' case. He argued that the near miss meant that less weight should be placed upon the Home Secretary's aim of immigration control. The Court of Appeal rejected this argument and in doing so said that there is no 'near miss' principle.

However, this does not mean that a near miss can never be relevant to an Article 8 case. As explained above, there are two sides to the proportionality balancing act - the Home Secretary's aim and the appellant's interests. The Court of Appeal discussed the first of these, but not the second. It is therefore still possible to argue that, even if a near miss does not reduce the weight to be attached to immigration control, it may increase the weight to be attached to the interests of the appellant. This may seem just a case of semantics, but it is in fact a very important distinction in practice. All things being equal, someone who complies with some of the Rules that the Home Office wants them to comply with surely has a better claim to stay in the UK than someone who complies with none of them.

European countries will receive more support from the EU to take up refugees under a new joint resettlement programme endorsed by the Civil Liberties Committee. The programme aims to step up the EU's role in providing international protection, especially for vulnerable groups such as women at risk and unaccompanied minors, in cooperation with the UN Refugee Agency (UNHCR).

The programme is to resettle in the EU people who have been granted refugee status in third countries (for example, Libyan refugees in Tunisia). As the host countries are often developing ones, with limited resources, they cannot integrate and protect large numbers of refugees.

According to the UNHCR, over 172,000 people will need to be resettled in 2012, whereas the global number of resettlement places is only about 80,000. In 2010, the EU resettled around 4,700 people, representing only 4.4% of those resettled worldwide that year, far behind the US (near 54,000 refugees) and Canada (around 6,700).

In line with MEPs' proposals, EU financial support for resettling refugees in the above groups will be increased. Member States currently receive €4,000 per person resettled on their territory. To encourage more EU countries to help in resettlement, Member States resettling refugees for the first time will get €6,000 per person for the first year and €5,000 per person for the second year. For the rest the sum received will stay at €4,000.

To date, 13 Member States have set up annual resettlement programmes: Sweden, Denmark, Finland, the Netherlands, the UK, Ireland, Portugal, France, Romania, the Czech Republic, Spain, Hungary and Bulgaria.

The Joint EU Resettlement Programme has been agreed by Parliament and Council representatives. The European Parliament as a whole will vote on it on 29th March. If adopted, Member States will have until 1st May 2012 to send the Commission an estimate of the number of persons they will resettle next year. The programme will apply in 2013.

EU Commissioner Malmström has issued a statement welcoming the European Council adoption of a common position on the Joint EU resettlement programme.

In his statement, the Commissioner says: “This is a much needed measure and a considerable step towards concrete engagements and increased cooperation regarding resettlement of refugees to Europe and will allow us to pool our resources and make a true difference in a spirit of solidarity."

2012 is the deadline for setting up the Common European Asylum System which will guarantee common minimum standards and procedures, and a uniform refugee status. A stronger engagement in resettlement also forms an integral part of the EU common asylum policy.

The Joint EU Resettlement Programme will increase the impact of the EU resettlement efforts in providing protection to refugees and maximising the strategic impact of resettlement through a better targeting of those persons who are in greatest need of resettlement.

The Resettlement Programme will specify a broader list of refugees whose resettlement will qualify for EU funding. There will also be specific EU resettlement priorities, specifying the nationalities of refugees and the countries from which resettlement should take place as a priority and for whom EU funding is available. In 2013 that list will include refugees from Congo, Iraq, Afghanistan, Somalia, Burma and Eritrea. Finally, the programme offers additional financial incentive for the countries that start to engage in resettlement activities.

For the period 2014-2020, the Commission proposes to set up a new mechanism which will be more flexible and attractive for the Member States and which will allow for more strategic use of resettlement. This should lead to a substantial increase in resettlement to the EU. The aim is to see more national resettlement schemes established and to increase the already existing ones.

In this case the Upper Tribunal stated that if an immigrant facing removal from the UK has a British citizen spouse and/or child, it will never be reasonable to require the British family member to go to live with them outside the European Union. The first appellant in this case was an Indian national facing deportation; his wife was originally Indian herself but had recently acquired British citizenship, and the Tribunal found that it couldn't be argued that it was reasonable for her to live with her husband in India even though she was originally from there.

This case is particularly significant because it puts an end to an argument often made by the Home Office that British citizens can relocate abroad to live with their family members. It is often suggested that someone who lived most of their life in another country before coming to the UK and acquiring British citizenship won't face many problems going back there and therefore it is reasonable to expect them to do so if their spouse doesn't have leave to be in the UK or has committed a serious crime. It is also sometimes argued that British children who are young could easily adapt to living in a new country.

At paragraph 110, the Tribunal stated:

[W]here the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so.

The reasoning behind this comes from the European Court of Justice in  Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09. The Court in that case stated that anyone who is a citizen of the European Union has an absolute right to reside within the EU so that any action by a state that effectively deprives them of the opportunity to live in the EU is a breach of European law. Therefore, saying that a European child should go outside Europe in order to be able to live with their parent(s) is not permitted under European law.

Having a British child (or a child who is a citizen of another European country) doesn't automatically stop you from being removed from the UK; the European Court in Dereci & Ors (European citizenship) [2011] EUECJ C-256/11 and the Upper Tribunal in Sanade made it clear that if there is another parent who the child can live with in the UK then European law doesn't stop the non-European parent from being sent abroad. Both courts also said that having a British (or European) adult family member, such as a spouse or partner, doesn't automatically stop you from being removed, because, unlike children, they are able to choose to stay in their own country and don't have to follow their family member abroad.

Sanade is good news, however, because it eliminates the all too common argument by the Home Office that British family members can travel abroad. The right to respect for family life under Article 8 requires a very detailed assessment of all the factors in favour of and against removal, and with the proper legal representation it is possible to make a very strong case that an illegal entrant, an overstayer or a person facing deportation should be allowed to stay in the UK with their British family.

The Independent Chief Inspector of the UK Border Agency, John Vine CBE QPM, has published his thematic inspection report of the UK Border Agency's Detained Fast Track (DFT) system.

The term 'Detained Fast Track' is used by the UK Border Agency to manage asylum applications that have been identified as ones where a decision to grant or refuse asylum can be made quickly.

The Chief Inspector was pleased to find that 93% of the decisions made by the Agency to refuse asylum were upheld by the independent Tribunal. However, he was concerned to find that:

• the DFT was not working as quickly as intended with decisions not being made until 13 days after a person's arrival in the DFT, despite the Agency's published aim of three days;
• 38% of the sampled refusal cases took longer than three months to remove;
• screening was not tailored to capture information that could fully determine whether someone was suitable for the DFT; and
• despite the cost of the detention and the impact on individuals, the Agency had not conducted or published any analysis of its DFT operation.

Following the publication of the 'Landing in Dover' report by the Children's Commissioner for England, the Executive Director of the Centre for Social Justice, Gavin Poole, has issued a statement welcoming the increased protection for children, and calling for further changes to help protect adult victims of human trafficking.

The statement reads:

“This crucial report from Maggie Atkinson, the Children's Commissioner for England, takes important steps to place unacceptable practices relating to child trafficking firmly in the spotlight. It reinforces some widely held fears that the sheer scale of those trafficked into the UK, and the extent of the crime, is both unknown and undocumented. The report demonstrates that individuals, those too often dismissed as  “illegal immigrants”, are in fact victims of crime, abuse and exploitation and are in need of specialist care.

“Whilst it is encouraging that these practices have reportedly been halted at all UK ports for unaccompanied children, it is disturbing that no changes have been made to protect adults. Those trafficked to the UK are among the most vulnerable members of society, at high risk of exploitation and abuse. Every individual, adult or child, should be given a chance to explain their real story. The risks and extent of trafficking must be fully understood and acknowledged within the Border Agency and at ports across the country; only then can we effectively support the victims and prosecute the perpetrators of this most shameful of crimes.”

A report issued by Maggie Atkinson, Children's Commissioner for England, has revealed that an agreement in existence between the UK and France regarding the treatment of unaccompanied children entering the country was in conflict with the UK Border Agency's (UKBA) duty to safeguard children and promote their welfare.

It also uncovered excessive periods of detention prior to release into local authority care due to the number and length of immigration interviews undertaken at the point of arrival.

The 'Landing in Dover' report results from an investigation by the Office of the Children's Commissioner (OCC) into the treatment of unaccompanied children asylum seekers when they first arrive in the UK. It has already led to changes in the way UKBA treats children seeking asylum.

The 'Gentleman's Agreement' enabled unaccompanied children to be sent back to France within 24 hours if they did not immediately ask for asylum. This resulted in a significant failure of child protection. Just over 1,700 unaccompanied children that entered the country in 2010 sought asylum, whilst a number of those returned to France under the Gentleman's Agreement may have been trafficked for exploitation. Investigations by OCC have found children seeking asylum include those escaping war zones and persecution. They are often hungry, ill, exhausted and distressed when they first arrive.

Once the Children's Commissioner brought the Agreement to the attention of Rob Whiteman, UKBA's new Chief Executive, he ended the practice in respect of children immediately.   

Other recommendations in the report which aim to improve the immigration process for children include:

• Using face to face interpreters and stopping the use of telephone interpreters for interviews other than for gathering basic details about the child's identity.
• Exploring ways in which the police can gather bio-data such as finger prints on UKBA's behalf when they are the first agency to encounter children who have just entered. This would enable them to arrange for the child to go directly into local authority care rather than to the immigration office for processing.
• Ensuring that when immigration interviews do take place that the child has had the chance to gain support from a legal representative and that their representative is able to accompany them, along with a Responsible Adult, to the interviews.

UN Secretary-General, Ban Ki-moon, has published a message for International Migrants Day, which was observed on 18th December.

In his message he said:

“Migration affects all countries — and so do myths and misperceptions about its impact. There are many false assumptions surrounding migration.

One such myth is that migrants are a burden. In reality, migrants make vast contributions to host countries. As workers, they bring skills. As entrepreneurs, they create jobs. As investors, they bring capital. In advanced and emerging economies, they play an indispensable role in agriculture, tourism and domestic work.  Migrants often care for the youngest and oldest members of society.

People view irregular migration as a crime. Many think migrants who lack proper documents are a danger to society and should be detained, or that all women who migrate to take up low-skilled jobs have been trafficked. These and other unfounded beliefs lead to the adoption of migration policies that are irrelevant at best, or even dangerous.

States have the sovereign prerogative to manage their borders. But, they also have the duty to abide by their international legal obligations. Under international human rights law, all persons, without discrimination and regardless of nationality or legal status, are entitled to enjoy fundamental human rights. No migrant should be sent back to a place where he or she will be tortured. Every migrant woman should have access to health care, including reproductive health care. Every migrant child should be able to go to school.

Human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are the inalienable entitlement of every person, including the world’s 214 million international migrants, as well as their family members.

Forty-five countries have ratified the International Convention on the Rights of All Migrant Workers and Members of their Families. I call on all others to join this important treaty as a concrete affirmation of their commitment to protect and promote the human rights of all migrants on their territories.

When their rights are violated, when they are marginalized and excluded, migrants will be unable to contribute either economically or socially to the societies they have left behind or those they enter. However, when supported by the right policies and human rights protections, migration can be a force for good for individuals, as well as for countries of origin, transit and destination.

Let us give meaning to International Migrants Day by taking constructive steps to leverage this global phenomenon into a force for progress.”

The European Commission has adopted a communication on "Enhanced intra-EU solidarity in the field of asylum" which seeks to reinforce practical, technical and financial cooperation, move towards a better allocation of responsibilities and an improved governance of the asylum system, and to contribute to the finalisation of the "Common European Asylum System" (CEAS) by 2012 (a deadline set by the Stockholm Programme).

The CEAS aims to set up a common area of protection and solidarity based on a common asylum procedure and a uniform status for people who have been granted international protection.

The Commission has proposed to reform the legislative framework which will form the basis of the CEAS - it consists of three Directives and two Regulations. The European Parliament and the Council have recently adopted the first of these proposals, the Qualification Directive, on 24th November 2011.

The other instruments (the Asylum Procedures Directive, the Reception Conditions Directive, the Dublin II Regulation and the EURODAC Regulation) are still under intense negotiations with the European Parliament and the Council.

The European Parliament has approved the Commission's proposal to amend the Qualification Directive which will enhance the rights granted to refugees and beneficiaries of subsidiary protection in the EU. The Directive guarantees uniform rights when it comes to health care and access to the labour market.

The European Court of Human Rights has recently ruled that a local authority was justified in not treating with priority a social housing request by an immigrant, whose son was conditionally allowed to stay in the UK.