Immigration Barristers' Blog

The government's announcement that it will be changing the rules for migrant domestic workers, including the removal of the right to change employer, will facilitate slavery and trafficking, say human rights charities Kalayaan and Anti-Slavery International. 

Migrant domestic workers are vulnerable to horrific abuse and exploitation as has come to light in a number of recent high profile cases in the criminal courts.

The changes would mean that any domestic workers able to escape abuse will immediately lose their right to reside in the UK, therefore greatly reduce the likelihood that they would seek help from the authorities for fear of being deported.

This policy would lead to the victims becoming ‘illegal’ and perpetrators going unpunished. Campaigners believe that the removal of the legal right to escape an abusive situation would result in domestic workers, desperate to earn money for the survival of themselves and their families, going underground, creating an underclass of unprotected and undocumented workers not protected under UK labour laws.

Audrey Guichon, Domestic Work Programme Co-ordinator, Anti-Slavery International, said: “By tying domestic workers to one employer the Government will effectively be licensing slavery, allowing employers to bring workers to the UK without providing those same workers any way of challenging or escaping abuse if it occurs. These proposed changes would give unscrupulous bosses the power to threaten workers with deportation if they do not comply with whatever they demand.”

In a recent report, the Home Affairs Committee has criticised the UK Border Agency's management of the processes for the enforced removal of those who are being deported from the UK.

The inquiry, launched following the death of Jimmy Mubenga on a deportation flight from the UK, found that although there were some positive aspects of the process, which is carried out on the UK Border Agency's behalf by a private security contractor, (initially G4S and, since 1 May 2011, Reliance Security) the Committee found evidence of:

• Inappropriate use of physical restraint, and the possible use of unauthorised and potentially dangerous restraint techniques.
• Weaknesses in passing on information about detainees’ medical conditions to all the relevant staff.
• Use of racist language by contractors.
• Use of excessive numbers of contactor staff.

The Committee recommends that the UK Border Agency should strengthen its procedures so that its own staff feel that they are entitled and expected to challenge any poor conduct on the part of contractors.

The Committee also rejects the practice of taking detainees to the airport as "reserves" in case another detainee is taken off a removal flight at the last minute.

To strengthen safeguards against the ill treatment of prisoners, the Committee recommends that members of the Independent Monitoring Boards for immigration removal centres—or a similar independent monitoring network—be given access to chartered removal flights.

Contains Parliamentary information licensed under the Open Parliament Licence v1.0.

The European Court of Human Rights has ruled that Omar Othman (Abu Qatada) cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.

The applicant, Omar Othman, is a Jordanian national who was born in 1960 near Bethlehem, then part of Jordan. He is currently detained in Long Lartin prison, Worcestershire, England. He is suspected of having links with al-Qaeda.

Mr Othman arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.

While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act, and in August 2005 he was served with a notice of intention to deport him to Jordan.

Mr Othman appealed against that decision. He had been convicted in Jordan, in his absence, of involvement in two terrorist conspiracies in 1999 and 2000. Mr Othman claimed that, if deported, he would be retried, which would put him at risk of torture, lengthy pre-trial detention and a grossly unfair trial based on evidence obtained by the torture of his co-defendants.

The UK Special Immigration Appeals Commission (SIAC) dismissed his appeal, holding in particular that Mr Othman would be protected against torture and ill-treatment by the agreement negotiated between the UK and Jordan, which set out a detailed series of assurances. SIAC also found that the retrial would not be in total denial of his right to a fair trial.

The case then went to the Court of Appeal and the House of Lords, and in February 2009 Mr Othman lodged an application with the European Court of Human Rights. The European Court has now ruled that in the absence of any assurance by Jordan that the torture evidence would not be used against Mr Othman, his deportation to Jordan to be would be a violation of Article 6 (right to a fair trial).

The Court of Appeal has ruled that migrants have the right to insist on taking legal advice before consenting to removal by the UK Border Agency [UKBA] at less than 72 hours notice.

The case of ‘Medical Justice v the Home Secretary’ related to a UK Border Agency argument that migrants who consented to removal from the UK were in effect waiving their right to legal advice.

The Court of Appeal decided that removal at less than 72 hours notice was insufficient for access to effective legal advice. In doing so it upheld important principles about an individual’s right of access to legal advice and to the courts when facing State action.

Responding to the ruling Law Society Chief Executive Desmond Hudson said the Court of Appeal stood above the criticism by politicians and elements of the media about the courts’ intervention in immigration cases.

“This case shows the need for the courts to protect the rights of the individual, whether an immigrant or anyone else, to have access to legal advice.

The Law Society provided two witness statements to the court. The Society stated that consent has to be real and therefore properly informed by legal advice, particularly when it means that the individual is withdrawing outstanding court challenges.

The Society pointed out that it is simply unsafe for the UKBA to rely upon that consent unless it is properly informed. It is therefore in the UKBA’s own interest to ensure that consent is properly given and recorded. The failure of the UKBA to take steps to ensure that this happens, the failure to contact migrants legal representatives in these cases and the failure to keep proper records of ‘consent’ led to the court challenge.

The Independent Chief Inspector of the UK Border Agency, has published a thematic inspection report of how the UK Border Agency manages foreign national prisoners.

The European Commission has asked eight Member States to ensure full compliance with EU rules on the return or removal of irregular migrants. So far Austria, Belgium, Cyprus, Germany, Lithuania, Poland, Sweden and The Netherlands have not notified the Commission of national measures implementing the 2008 'Return' Directive. Member States were required to transpose the provisions of the Directive by 24th December 2010, and their failure to do so is jeopardizing the efficiency and fairness of the common return procedure and undermining the EU's migration policy.