Immigration Barristers' Blog

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.

A lecturer at Glasgow Caledonian University is to undertake a study into the public’s attitude towards the problem of human trafficking – and how consumers’ spending habits contribute towards it.

Acording to Dr Kiril Sharapov, there is a widespread misconception that human trafficking is only associated with the illegal sex trade, where people are forced into prostitution after being trafficked across borders.

He believes a growing demand for cheap goods and services, and lack of public awareness of trafficking, obscure our concern for the welfare of the migrant workers involved.

Such demand and lack of awareness fuel the exploitation of migrant workers, many of whom work in a wide variety of everyday situations, including care homes, hotels, and construction.

“Trafficking is not just the issue of badly controlled borders, or economic migrants or criminals,” said Dr Sharapov. “It should be looked at from the perspective of why people are smuggled and trafficked here – there is a demand for cheap and exploitable labour. The rising costs of energy and raw materials and the continuing economic downturn are having a direct impact on the price of consumer goods.”

“This creates downward pressure on wages and an increasing demand for cheap labour that can be easily intimidated, for example by physical violence, threats of deportation or to the security of family back home, and exploited.”

Dr Sharapov’s work will focus on the UK (where people are trafficked to), Ukraine (where people are trafficked from) and Hungary (where people are trafficked through).

He will be based at Central European University in Budapest for the duration of his two-year study, which it is hoped will lead to policy changes relating to human trafficking at national as well as international level.

Recent research by the National Institute for Economic and Social Research (NIESR) into the impact of immigration on the UK labour market has revealed that increased immigration was not associated with increases in claims for Jobseekers Allowance.

Existing research on the labour market impact of immigration to the UK has generally found little or no impact on average, with at most a generally modest impact on the less skilled. This paper adds to that evidence by using a more comprehensive and reliable data source, and updates the analysis to include the recent recession.

The paper presents initial results on the impact of migration inflows on the claimant count rate using previously unused data on National Insurance number (NINo) registrations of foreign nationals, which researchers regard as superior in a number of respects to data on migrants from the Labour Force Survey (LFS).

In contrast to the LFS, which is a sample survey of the entire population at a point in time, NINo registrations to overseas nationals are complete administrative data on new migrant inflows, largely for employment purposes, giving reliable estimates at much smaller geographies than is possible with the LFS.

The research found no association between migrant inflows and claimant unemployment. In addition, researchers tested for whether the impact of migration on claimant unemployment varies according to the state of the economic cycle, and found no evidence of a greater negative impact during periods of low growth or the recent recession.

The Court of Justice of the European Union has ruled in a case involving the ‘return directive’, which establishes common standards and procedures applicable in Member States for removing illegally staying third-country nationals from their territory.

The directive provides for the adoption, in respect of any illegally staying third-country national, of a return decision which, in principle, opens a period for voluntary return, followed, if necessary, by forced removal measures.

If there is no voluntary departure, the directive requires Member States to carry out forced removal using the least coercive measures possible. It is only if there is a risk of the removal being compromised that the Member State may place the person concerned in detention, the duration of which may in any case not exceed 18 months.

The Court of Justice case concerned an Armenian national, who entered France in 2008. He was the subject of a prefectoral decision, in 2009, requiring him to leave French territory and setting a one-month deadline for voluntary departure. Following his refusal to leave France, a new return decision was adopted in June 2011, in the form of a deportation order not accompanied by a time-limit for voluntary departure. In addition, the French authorities ordered his placing in police custody and then detention for illegal staying, measures which he challenged before the French courts.

The Cour d’appel de Paris (France), which is currently hearing the dispute, asked the Court of Justice whether the 'return directive' precludes French legislation which punishes a third-country national who stays illegally in France, beyond three months, without the required documents and visas, particularly a residence permit, by a one-year sentence of imprisonment and a fine of €3,750.

The Court of Justice ruled that the ‘return directive’ precludes national legislation imposing a prison sentence on an illegally staying third-country national during the return procedure. That directive does not preclude criminal penalties being imposed in accordance with national rules and in compliance with fundamental rights on third-country nationals to whom the said procedure has been applied and who are staying illegally with no justified ground for non-return.

Third country migrants working legally within the EU should enjoy certain comparable rights to those of EU nationals under a new "single permit" directive agreed by Parliament and Council and backed by the Civil Liberties and Employment committees.

The "single permit" directive - which complements other measures on legal migration - is designed to facilitate such migration where it meets the needs of the EU labour market.

The proposed directive would simplify administrative requirements for third-country nationals by enabling them to obtain work and residence permits via a single procedure and grant them a standard set of rights comparable to those enjoyed by EU workers, such as decent basic working conditions, recognition of educational and professional qualifications and access to social security.

Member States would have four months within which to decide on a single permit application. These rules do not affect EU countries' power to decide whether or not to admit non-EU workers or how many to admit.

The agreed rules would apply to non-EU nationals who wish to reside and work in a Member State, or who already legally reside or work in a Member State. The new law would not cover long-term residents, refugees and posted workers (who are already subject to other EU rules), seasonal workers or intra-company transferees (who will be covered by other EU directives). Au pairs and seafarers sailing under the flag of a Member State are also excluded.

Parliament as a whole is to put the agreed text to a vote in the next plenary session. Member States will have two years in which to transpose the directive into their national laws.

The European Commission has proposed to strengthen dialogue and operational cooperation with non-EU partner countries in the area of migration and mobility, deepening the proposals contained in the Communication on a Partnership and Shared Prosperity with the Southern Mediterranean, of 8th May.

The new approach is detailed in a renewed 'Global Approach to Migration and Mobility' which places mobility of third country nationals at its centre and which makes partnerships more sustainable and forward-looking. Mobility of third country nationals across the external EU borders is important as it applies to a wide range of people, such as short-term visitors, tourists, students, researchers, business people or visiting family members and linked to visa policy.

Priority will now be given to two main operational frameworks:

Firstly, Mobility Partnerships will be offered to the EU's immediate Neighbourhood and to Tunisia, Morocco and Egypt in the first instance. Mobility partnerships offer a concrete framework for dialogue and cooperation between the EU and non-EU countries. These partnerships are focused on facilitating and organizing legal migration, effective and humane measures to address irregular migration, and concrete steps towards reinforcing the development outcomes of migration. Concluding visa facilitation and readmission agreements are to be part of these partnerships.

For other countries, the Commission proposes to set up Common Agendas on Migration and Mobility that will constitute an advanced level of cooperation, based on a number of common recommendations, targets and commitments for dialogue and cooperation.

Migration and Mobility Resource Centers will be set up to provide resources and support to individuals and partner countries in the areas of skills and labour matching. The recently launched online EU Immigration Portal will, in addition, help migrants to make more informed choices about migration and mobility towards the EU.

A Global Approach Report will now be prepared every two years, starting from June 2013, in order to monitor implementation and ensure progress.

The International Organisation for Migration (IOM) and the European Commission have agreed to strengthen their cooperation in the area of migration and mobility.

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.