January 18, 2021

Permission to work guidance for asylum seekers is unlawful

Permission to work guidance for asylum seekers is unlawful
Posted on January 18, 2021 by Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M
R (IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin) (18 December 2020)

The claimant, “IJ”, was a citizen of Kosovo who was determined to be a refugee and a victim of trafficking. During the time her asylum claim was still being considered, her claim arose, and permission was granted, by a condition imposed on her under paragraph 360A of the Immigration Rules, whereby she was not permitted to take up employment in a position that fell outside the Shortage Occupation List (SOL). The SSHD refused to allow IJ to take up employment in a post as a cleaner that would fall outside the SOL and refused to exercise her residual discretion outside the Immigration Rules to permit this. Aggrieved by this, IJ challenged the lawfulness of SSHD’s decisions maintaining the SOL condition, her relevant policy guidance and rule 360A itself, on the basis that these are or were not in accordance with article 4 of the ECHR and/or article 8 read with article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT) and associated law and guidance, and or infringed common law principles of clarity and transparency and/or discriminated against trafficking victims contrary to article 14 of the ECHR in conjunction with article 4 and/or article 8. IJ was trafficked to the UK on 31 December 2017 and was detained on 9 March 2018 after coming to the attention of the authorities. On 19 March 2018 a decision-maker found no reasonable grounds to regard her as a victim of trafficking.

On 10 September 2018 the SSHD promulgated a policy (which was declared unlawful) that if an alleged victim of trafficking claimed asylum, their application for discretionary leave to remain as a victim of trafficking would not be determined until after their asylum claim. On 6 March 2019, IJ issued a civil claim against the Home Office and Bedfordshire Police relating to her detention, the failure to identify her as a victim of trafficking and associated breaches of her data rights and human rights. On 7 March 2019 a decision was made that there were reasonable grounds to regard her as a victim of trafficking. On 10 May 2019 she requested permission to take up a non-SOL offer of employment and made this request in alternative proceedings leading to litigation which was compromised. On 2 January 2020 the SSHD made the decision under challenge, again refusing permission for IJ to work outside the SOL, on the ground that her circumstances did not distinguish her from other asylum seekers. Subsequently, judicial review proceedings were pursued and permission was granted. On 14 July 2020 the SSHD decided that there were conclusive grounds to regard IJ as a victim of trafficking, but refused to grant her discretionary leave on the grounds that her asylum claim was outstanding. However, on 5 October 2020 the SSHD granted IJ asylum as a refugee and she was granted a work permit on 13 October 2020.

Context

Article 11 of Directive 2003/9/EC addresses the position of those seeking asylum in the EU. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to applicants. Member States must decide the conditions for granting access to the labour market for the applicant. Part 11B of the Immigration Rules, paragraphs 360, 360A, 360B provide that after one year an asylum seeker may request a right to work but is not entitled to such a right.

Asylum seekers who are allowed to work will thus be restricted to jobs on the SOL which is published by the Home Office on the advice of the Migration Advisory Committee. Overall, the SOL sets out various categories of doctors, nurses and therapists, and teachers in a few specified subjects, IT professionals, social workers, engineers, expert chefs and artists of a number of specified kinds. The Migration Advisory Committee estimates that it covers about 1% of UK employment. In the instant proceedings Bourne J found it appropriate to assume that very few if any of the asylum seekers who come to the UK like the present claimant will be able to occupy such positions.

The SOL restriction prevented her from taking up a cleaner’s job which she was offered. She thus contended that the SOL restriction and its application to her were inconsistent with the requirement under article 12 of ECAT to implement “legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery”.

Unlawful lacuna in discretionary leave policy

After the hearing but before judgment in the present case, judgment was given by Mostyn J in R (EOG) v SSHD [2020] EWHC 3310 (Admin), discussed here, where he determined, having regard to article 10 of ECAT and to the long delays which are endemic in the NRM process, that the SSHD’s policy on discretionary leave contains an unlawful lacuna by not providing for any grant of discretionary leave to remain on an interim basis to those who have received a reasonable grounds decision but, as yet, no conclusive grounds decision (or grant of asylum). The gap had particular impact on the claimant EOG because she had a time-limited visa permitting her to work but, on its expiry, was prohibited from working pending a further decision.

The Administrative Court

IJ’s claim failed on ground 1 but succeeded on ground 2 and partially on ground 3.

Bourne J observed that it is common ground that in spite of the mandatory terms of rule 360A which provide that any permission to work “will” be subject to the SOL restriction, the SSHD nevertheless has a residual discretion to consider granting a wider permission to work in individual cases. The discretion was acknowledged, and applied, in the decision letter of 2 January 2020. IJ was aggrieved that the SSHD’s policy does not acknowledge this discretion or explain how it is to be applied.

The policy guiding caseworkers, namely Permission to work and volunteering for asylum seekers, Version 8.0 stated the mandatory rule by setting out that “If an asylum seeker or failed asylum seeker is granted permission to work (subject to the exceptions listed in the section on Applications from asylum seekers with existing leave), this must be restricted to jobs on the Shortage Occupation List (SOL), published by the Home Office.” IJ argued that the decision-maker appeared to apply a test of whether she could distinguish her case from that of other asylum seekers, however there is no published guidance or instruction which states that this is the right test or guides caseworkers on how to apply it.

She relied on the judgment in R (W, a child) v SSHD [2020] EWHC 1299 (Admin), see here, concerning the lawfulness of published instructions to caseworkers on the policy of granting leave to remain in the UK on condition that the application have no recourse to public funds (NRPF). In W the Court ruled that the instructions failed to make clear that, to avoid a breach of article 3 of the ECHR, a NRPF condition must not be imposed or it must be lifted where, on the available evidence, the applicant was at imminent risk of destitution. Instead it merely indicated that caseworkers had a discretion which could be applied in such a case. That gave rise to a real risk of unlawful decisions in a significant number of cases. Despite the SSHD’s efforts to the contrary, Bourne J held that:

75. In my judgment, the Defendant’s response does not really meet the Claimant’s objection. The parties agree that in deciding what if any permission to work can be given to a potential victim of trafficking, it is necessary for the decision maker to exercise a discretion on the individual facts rather than applying the “bright line” rule stated in paragraph 360A of the Immigration Rules. In those circumstances, as Mr Goodman says, the lack of any reference to the discretion obviously makes the guidance misleading.

76. I also accept Mr Goodman’s submission that in applying the discretion, the decision maker must have regard to the primary objectives of ECAT. As in the case of PK Ghana, caseworkers should be directed accordingly. I do not agree with Mr Malik’s submission that any difference between articles 12 and 14 of ECAT makes PK distinguishable. Article 12 requires that the State “shall adopt” the necessary measures, while article 14 requires that the State “shall issue” a permit if it considers it necessary.

77. Guidance on article 12 therefore will be unlawful if it creates a real risk of unlawful decisions being made in a significant number of cases. The present lack of clear and focused guidance, in my judgment, creates that risk.

IJ therefore succeeded on ground 2 and Bourne J made a declaration that the guidance is defective because it failed identify the discretion or the objectives of ECAT relevant to its exercise. On the other hand, how that defect is fixed remained in the SSHD’s domain.

In the context of ground 3, IJ submitted that the framework of rule 360A and the guidance and the decision in her case unlawfully discriminated against her, breaching article 14 of the ECHR in conjunction with article 4 and/or article 8. Notably, in Thlimmenos v Greece [2001] 31 EHRR 15, the alleged discrimination was of the type identified by the ECtHR as a failure “to treat differently persons whose situations are significantly different” and it was necessary to consider a series of questions which can be arranged in different ways and should not be “rigidly compartmentalised”. Bourne J adopted the formulation used by Murray J in R (JP and BS) v SSHD [2020] 1 WLR 918, i.e. (i) are the matters complained about within the ambit of a right protected by the ECHR? (ii) has there been a difference in treatment between two persons who are in an analogous situation – or, in this case, a failure to treat differently two persons in different situations? (iii) is that difference (or the lack of the difference) of treatment on the ground of one of the characteristics listed, or an “other status” referred to in, article 14? and (iv) is the differential treatment objectively justified, in the sense that it had a legitimate aim to which it bore a reasonable relationship of proportionality? IJ argued that the policy and the decision concerning permission to work for a potential victim of trafficking manifestly are within the ambit of both articles. The right to work, she said, has obvious implications for private life and psychological integrity. She pointed to Sidabras v Lithuania (2006) 42 EHRR 6, in which a restriction on the right to work of those who, before independence, had worked for the KGB did not infringe article 8 but did infringe article 14 in conjunction with article 8.

Further in R (K and AM) v SSHD [2018] EWHC 2951 (Admin), Mostyn J held that the policy on basic trafficking support (and a change to the amount paid to those in receipt of it) was within the ambit of Article 4, because it is accompanied by “positive obligations to provide appropriate support and assistance to the victims of the conduct which is referred to there”. In JP and BS it was agreed that the policy of deferring decisions on ECAT leave until after their asylum claims was within the ambit of articles 4 and 8. Therefore, in that case the SSHD did not dispute that the timing of an ECAT leave decision had a more than tenuous link with the right not to be subjected to slavery or servitude and with the right to respect for a person’s private life. Bourne J judged that:

93. The case is therefore within the ambit of Article 8. But even if it were not, it would in my judgment be within the ambit of Article 4 by parity of reasoning with K and AM (see [87] above), because the grant or refusal of either an unlimited or a qualified right to work has a more than tenuous connection with the right of a trafficking victim to receive appropriate support and assistance.

Next, Bourne J tackled the remaining questions. Taking notice of the SSHD’s resistance to IJ’s line of attack he held that:

106. Nevertheless, as under Ground 2, I have concluded that the lack of reference to a discretion in the guidance does create a real risk that caseworkers will fail to have sufficient regard to the particular circumstances, and the ECAT rights, of those who claim to be victims of trafficking, and of their decisions thereby being discriminatory in the Thlimmenos sense.

107. That is how Ground 3 clears the hurdle of showing discriminatory treatment as well as a lack of justification. Once discrimination in that sense is made out, the Defendant does not advance any factual justification for its existence, and indeed could not do so in view of her acceptance that a residual discretion should be applied in cases of this kind.

108. There will therefore be a declaration that the guidance is unlawful for that reason too. Again, the appropriate changes will be for the Defendant to frame.

The court found that the individual decision in IJ’s case failed because of the fact that her personal circumstances were taken into account. Accordingly, there was no discrimination consisting of a failure to consider the ways in which her case might be different from that of other asylum seekers. The contention that the decision maker discriminated against her by concluding that her circumstances did not compel a grant of unlimited permission to work implies that the law requires such a grant in all cases analogous to hers. Overall, the third ground succeeded in respect of the guidance; however, not in respect of rule 360A or the individual decision.

As to costs, the court said that having obtained important declarations about the guidance, IJ was the successful party despite the fact that the decision making in her individual case was upheld. Therefore, the general rule stated in CPR 44.2(2)(a) applied and so the SSHD was ordered to pay the IJ’s costs.

Comment

Recently the Home Office has lost a number of cases in which its guidance was declared unlawful. In R (FB (Afghanistan) & Anor) v SSHD [2020] EWCA Civ 1338, see here, the Court of Appeal held that the SSHD’s removal notice window policy found in the Judicial Review and Injunctions (Version 17.0) was unlawful insofar as it gave rise to a real risk of preventing access to justice for irregular migrants. Moreover, in R (Humnyntskyi & Ors) v SSHD [2020] EWHC 1912 (Admin), see here, Johnson J declared that the SSHD’s policy for the provision of accommodation pursuant to Schedule 10 of the Immigration Act 2016 to individuals granted immigration bail was systemically unfair. In R (W, a child), it was held that NRPF condition produces the effect of making its subjects ineligible for almost all benefits paid from public funds, including those intended to maintain the basic welfare of children. The claim succeeded on the point that the NRPF regime fails to ensure that imposing NRPF will not result in inhuman treatment contrary to article 3 of the ECHR and was contrary to section 6 of the Human Rights Act 1998 as expounded by the House of Lords in Limbuela [2006] 1 AC 396. Furthermore, in the case of R (Dzineku-Liggison & Ors) v SSHD (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC), discussed here, the UT determined that the policy on fee waivers, the Fee Waiver: Human Rights-based and other specified applications, version 3.0 (4 January 2019), was unlawful. The present case and R (EOG) are further reminders of the ongoing unlawful behaviour of the Home Office in the context of trafficking cases and the Permission to work and volunteering for asylum seekers, Version 9.0 still states that “If an asylum seeker or failed asylum seeker is granted permission to work … this must be restricted to jobs on the Shortage Occupation List (SOL), published by the Home Office.”

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January 11, 2021

New UK approach to refugees and safe third countries

The government has introduced important new rules on the handling of claims for asylum with effect from 1 January 2021. Guidance for Home Office asylum caseworkers was published the day before, on 31 December, fleshing out some of the operational details. What is not in the policy document is as revealing as what is.

The headline is that any person who travelled to the UK through a safe country will have their asylum case declared inadmissible and in theory face removal to any other safe country around the world willing to accept them. The likely reality of what happens in practice is very different: more delays in the asylum process and very few if any third country removals.

My overall impression is that the rules are completely unworkable as they stand, even if there were removal agreements with other countries. Which there are not, and a person cannot be sent to a country of which they are not a citizen without the agreement of that country. The rules build in an automatic period of delay in the processing of new asylum claims and are replete with opportunities for legal challenge. But I do not think the civil servants who drafted them expect the rules to be “workable” in the sense of removals actually taking place to safe third countries. The rules are about politics and presentation, not governance.

Since the time of Jack Straw as Home Secretary in the late nineties, the three pillars of the in-country UK asylum system have been “fairer, faster, firmer”. The new policy represents the final abandonment of the first two elements of that approach. The outcome will be a significant increase in the number of asylum seekers physically present in the United Kingdom whose cases remain undecided.

The new inbuilt delay will make more difficult and cruel the removal of non-refugees, who will potentially live in the UK for many years before they receive a negative decision. The new delays also postpone the new start that genuine refugees need and deserve, denying them their right to work and other rights conferred on them by the Refugee Convention. In the meantime, they are being accommodated in remote military barracks in extreme poverty. As many as 75% of asylum claims ultimately succeed. Aside from the inhumanity, it is terrible public policy to humiliate and punish those who are ultimately going to be allowed to settle in the UK.

What does inadmissibility mean?
If a claim for refugee status is made and it is declared “inadmissible”, this means that it will not be considered any further. In short, the person’s claim to be recognised as a refugee and to be granted the benefits of the Refugee Convention, to which the UK is still a signatory, will not be either accepted or, formally, rejected. The person, who may or may not be a refugee, is left without status or any of the rights under the Refugee Convention. The Home Office will then try to remove that person to a safe country somewhere in the world.

Formal inadmissibility decisions will be vanishing rare in reality, though. The new process builds in an additional prior limbo period when the person has been referred for consideration for inadmissibility but no formal decision to declare their application inadmissible has been made. A formal inadmissibility decision will only be made if “return” (actually this can be to an entirely new country the person has never been to before) of that person is agreed with another country. This may be through a general “returns” agreement or arrangement or through case-by-case agreements on individuals. Given such “return” agreements seem likely to be rare, so too will be formal inadmissibility decisions.

When might claims be considered for inadmissibility?
The inadmissibility procedure is most likely to be be triggered if the person

could enjoy sufficient protection in a safe third country because … they could have made an application for protection to that country but did not do so and there were no exceptional circumstances preventing such an application being made.

The potential “application for protection” need not have been for refugee status nor indeed any kind of formal status. It is not at all clear what “exceptional circumstances” might be, but being under the control of traffickers might be expected to qualify, for example. The Home Office guidance is largely silent on this issue, which rather gives the impression that mere physical presence in a country would be considered sufficient by most officials. In one example it is suggested that if a person is under the “coercive control” of another then this may qualify.

There are other circumstances which might trigger the inadmissibility process. If a person has already been recognised as a refugee or “otherwise enjoys sufficient protection” (for example because they were granted subsidiary protection under EU law) in a safe third country and can still avail themselves of protection there, their claim in the UK can be declared inadmissible. This is unlikely to arise much in practice. It will be difficult for the Home Office to know or prove if a person has been recognised as a refugee elsewhere without access to the EU’s Eurodac database (see below), and even if it can be proven that the person has refugee or other status in another country, that country is under no obligation to accept the person back if they are not a citizen.

Even if a person has made an “application for protection” (not necessarily refugee status) in a country, their claim in the United Kingdom can be declared inadmissible. Again, it is unlikely that officials at the Home Office could discover this independently without an admission by the asylum seeker in question.

Finally, a person’s asylum claim can be declared inadmissible if they could enjoy sufficient protection in a safe third country because the person has “a connection to that country, such that it would be reasonable for them to go there to obtain protection”. Self evidently, “a connection” is both incredible wide and incredibly vague. There is no further guidance on what it means. We might guess that where a person is proven to have family members in another country, an official at the Home Office might opine that it is therefore “reasonable” for the person to go there instead. In the meantime, their claim to refugee status will be declared inadmissible. The real practical question is whether the person would actually be admitted to that country, which is up to the country concerned, not some civil servant cloistered away in the Third Country Unit in Croydon. This disjunct between theory and practice is the central problem with all of these rules, as we will see.

What might constitute evidence of travel via a safe country?
Firstly, it is for the Home Office to prove it is more probable than not (the civil standard of proof) that a given person travelled to the UK via a safe third country.

The United Kingdom lost access to the EU’s Eurodac fingerprint record database at 11pm on 31 December 2020, so it is no longer possible to definitely establish whether an asylum seeker in the UK claimed asylum in an EU country. The Eurodac database underpins the allocation of responsibility for deciding asylum claims within the Common European Asylum System, often referred to as the Dublin system, but the UK has left all that behind.

The Home Office does still have records of past Eurodac matches, however. These can no longer be used to trigger a Dublin return but the guidance suggests, somewhat optimistically, that this may “form the basis of an enquiry to relevant countries to check the accuracy of the match and request return.” Good luck with that. There’s no obligation on any EU country to agree to any such return.

Instead, an admission from the asylum seeker or circumstantial evidence will be needed. The guidance does not seem to allow for a presumptive approach of “you must have travelled through some safe country because otherwise how did you get here?” The following non exhaustive list of possible sources of information is set out in the guidance:

– observations by a Home Office officer or another person in an official capacity, relating to the person’s method and place of entry to the UK and their known or probable place of embarkation

– physical or verbal evidence collected or recorded at the time of the claimant’s first encounter by a Home Office officer

– documents or other physical evidence submitted by or found on the claimant

– the claimant’s responses in the screening interview (or any other interview, for instance a supplementary interview to screening, or the substantive asylum interview)

– fingerprint evidence showing the claimant to have spent time in a safe third country (for instance, where such evidence is available through the biometric data-sharing process with the USA, Australia, Canada and New Zealand, the bilateral fingerprint sharing process with the Republic of Ireland, or any similar process that might be undertaken with any other safe country)

– File evidence of historic Eurodac matches

Being found in the back of a lorry that can be traced to entry through France would be sufficient to link a person to France, we can assume. Being found with lots of receipts from Belgium might potentially be sufficient to show the person was in Belgium at some point, according to the guidance. Being found on a beach might not be sufficient, though. As the Home Office guidance itself also says:

A passer-by in Kent seeing the claimant arriving in a small boat from an easterly direction would not, by itself, meet the standard of proof required…

It is not clear to me what the consequences will be for an asylum seeker who refuses to answer questions about their route of travel to the United Kingdom. There is no “right to silence” that applies here, I think, and a decision-maker would probably be entitled to draw adverse inferences. But that is still not enough to prove travel through a particular country. Lying about route of travel might suggest the person is not generally a truthful one and might amount to the criminal offence of deception under sections 24A or 26 of the Immigration Act 1971. But route of travel is irrelevant in law to whether a person meets the definition of a refugee and is not a core aspect of the person’s claim. Just because a person lies about their route does not mean they are not a refugee, basically.

This is likely to become a real problem for refugees and the Home Office very quickly. Refugees are already afraid to disclose information about criminal networks and people smugglers or traffickers and this will make them even more reluctant to talk.

To which asylum claims does the new process apply?
All new claims for asylum by non-EU citizens made on or after 11pm on 31 December 2020 are to be considered under the new policy. The policy can also be applied to existing asylum claims that were lodged before 11pm on 31 December 2020 (there were no transitional provisions in the statement of changes: see Odelola). The guidance to officials states that the new rules “may” be applied to existing cases but goes on to suggest that this will not normally be appropriate. The guidance is, again, incredibly vague:

…in broad terms, such a decision is unlikely to be appropriate if the claimant would not have been eligible to receive a similar decision under the previous rules, or if the person’s progress through the asylum system has already been substantially delayed compared to average decision timescales.

Average timescales are by nature very much a moveable feast so this is basically meaningless. Waiting times for asylum decisions were already going up and up even before the pandemic.

Where some evidence (see below) exists that suggests travel through a safe third country, the case is to be referred within the Home Office to the Third Country Unit for further consideration. The Home Office guidance states that a decision to make a referral is not a “decision” but an “assessment”. This re-purposing of the English language is presumably intended to avoid these referral decisions becoming the subject of an application for judicial review.

Rather charmingly, the guidance states that where a case “appears to stand a greater chance of being promptly removed if substantively considered and refused, it will usually be appropriate for the case to be routed for substantive decision.” This is said to be most likely to arise in cases certified as “clearly unfounded” or as suitable for the detained asylum casework process. So, perversely, it is only asylum cases which look like strong ones which are to be considered for inadmissibility.

Home Office policy is not to apply the inadmissibility procedure to separated children claiming asylum other than in very specific circumstances where it may be assessed to be in the child’s best interests. A separate inadmissibility procedure exists for any EU citizen who comes to the UK to claim asylum.

Delay and “reasonable” time
The Immigration Rules themselves provide that when an application has been treated as inadmissible, the Home Office will nevertheless go on to consider the case if either

removal to a safe third country within a reasonable period of time is unlikely; or
upon consideration of a claimant’s particular circumstances the Secretary of State determines that removal to a safe third country is inappropriate
As we have seen, formal inadmissibility decisions are unlikely to occur in practice. Is merely referring a case for consideration as to whether it might be inadmissible enough to constitute treating it as inadmissible? Probably not, in which case the qualifications above do not apply to this prior limbo period and there is no requirement in the Rules at all, even a soft requirement, to properly consider a claim for asylum.

However, the guidance ignores the strict terms of the Rules and states that an asylum claim should be properly considered where “it is clear that there is no reasonable prospect of removal within a reasonable timescale (for instance, if all possible countries of return have emphatically refused to agree to the person’s return).” Given that every country in the world is considered a potential country of “return” the example might be thought unhelpful. The guidance goes on to say that if no country has accepted the person’s “return” within six months then the person’s asylum claim should normally then be properly considered. That period can be extended however and is not a “hard” limit; it is easy to imagine plenty of cases not being admitted for consideration even though six months have elapsed.

It is worth reiterating that this is six months or more on top of the existing waiting times for consideration of a substantive asylum claim.

To which country can the person be removed?
The term used in the rules and policy is “safe third country”. The phrase “third country” is meaningless in plain English but has come to mean, amongst immigration lawyers and officials, a country that is not that of the person concerned and is not the United Kingdom. So if a person travels from Hong Kong to the United Kingdom by transiting in Dubai, Dubai is considered the “third” county. If a person travels from Syria through Turkey, Greece, central Europe and eventually France, all of those countries the person travels through are considered “third” countries. However, even the adopted meaning of the word is not inherently linked to the route of travel. For the Hong Kong citizen who reaches the United Kingdom, any country in the world at all other than Hong Kong and the United Kingdom might be considered a “third” country. Australia, Belarus, Chile and Djibouti are all a third country for this person, even if they have no connection whatsoever to those countries.

It is this wider, indeed widest, definition that the Home Office has adopted. The trigger for a case being considered inadmissible is proven travel through and opportunity to claim asylum in a specific country. But the consequence is that the Home Office “will attempt to remove the applicant to the safe third country in which they were previously present” or “to which they have a connection” or “to any other safe third country which may agree to their entry”. So the person can in theory be removed to any third country at all as long as that country will accept them and certain other minimal conditions are met.

Worse than that, paragraph 345B defines “safe third country” but fails to specify explicitly that it does not include the person’s own country. Whether this matters remains to be seen.

What does “safe” mean?
In contrast to previous legislative attempts at defining safe countries, a “white list” approach of listing certain countries as potentially or definitively safe is not adopted. Instead, the assessment of safety must be specific to the person concerned. It is the Home Office which must prove that the country is a safe one. All of four conditions must apply.

Firstly, the Home Office must establish that the person’s life and liberty must not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country. This phrasing may at first glance seem slightly odd to refugee lawyers as it is similar to the definition of a refugee at Article 1A of the Convention but not identical. In fact, the words are then from Article 33 of the Convention, the prohibition of expulsion or return (“refoulement”):

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened [etc]…

The country to which the person is removed, as well as not directly threatening their life and liberty for one of the five reasons, must also respect the principle of non refoulement in accordance with the Refugee Convention: there must be no indirect forcing of refugees back to their home countries.

The country concerned must also respect the prohibition of removal in violation of “the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law”. These words are similar to those at Article 3 of the European Convention on Human Rights, Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights. The prohibition on degrading punishment is omitted. In practice, this could be argued to matter little as the overlap between “treatment” and “punishment” is very considerable, perhaps complete. The fact that Article 3 ECHR is not specifically referenced could be taken as an ambition to remove people to countries not signed up to the ECHR.

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Finally, to be a safe third country for these purposes there must be a “possibility” to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention. The country concerned must, we can take it, be a signatory to the Refugee Convention. The requirement that there be a mere “possibility” of making a claim to refugee status is a very low standard, though, and very, very different to the assurance under the EU system of asylum seeker transfers that a claim would be properly processed and fairly heard in accordance with clearly defined minimum standards, supervised by the European Commission and adjudicated by the Court of Justice of the European Union.

Any refugee lawyer reading this will immediately see that whether these four conditions are met in a given case is very much open to argument. Without a white list of supposedly safe countries and a statutory presumption that those countries are safe, any individual inadmissibility decision can be challenged by way of an application for judicial review. The Home Office takes the view there is no right of appeal against an inadmissibility decision and given the tribunal’s reputation as a jurisdictional wallflower this seems a safe assumption.

I therefore conclude that the Sovereign Borders Bill we are told is coming soon is going to include a white list and some statutory presumptions to replace those in the Immigration and Asylum (Treatment of Claimants etc) Act 2004, which were tied to EU membership.

Is “inadmissibility” compatible with the Refugee Convention?
Is it lawful to remain a signatory to an international agreement that you ignore in practice and when you deny its beneficiaries their rights under that agreement?

This imposition of limbo, whether before or after a formal inadmissibility decision, is a problem. If a person meets the definition of a refugee in Article 1A of the Refugee Convention, that person is a refugee and is entitled to the rights conferred by the Convention, including the right to work. A grant of refugee status is declaratory, meaning that it is a belated recognition of a pre-existing status. The inadmissibility procedure denies a genuine refugee their rights under the Convention.

The UK has never adopted the Refugee Convention into domestic law, meaning that it is not directly enforceable in the courts of the United Kingdom. In any event, the Refugee Convention itself does not provide any explicit procedural protections for refugees, such as the right to claim asylum, having a claim decided within a reasonable time or having a right to an appeal. These rights are incorporated into EU law, it is relevant to observe: these new rules could not have been adopted while the UK was part of the EU system of laws. The closest the United Kingdom has come to incorporating the Refugee Convention is section 2 of the Asylum and Immigration Appeals Act 1993:

Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.

There is a strong argument that the inadmissibility procedure is at least implicitly contrary to the Refugee Convention, for the reasons above. When challenged on this, as seems inevitable, the Home Office will no doubt argue that the Convention is not incorporated, it includes no procedural protections and protracted delays in asylum decision making are commonplace internationally, including in the UK itself.

For my own part, I would say that the inadmissibility procedure does breach the Refugee Convention, and clearly does so. The courts may ultimately disagree but it is perhaps more likely they will decline to consider the question and merely decide not to get involved. Enforcing international law in the UK courts is famously problematic and the question with which I opened this section is not the right question from the perspective of a refugee or a practicing lawyer. The real question is whether there is an enforceable right to have an asylum claim decided in a country in which one is physically present, perhaps within a reasonable time.

What now?
There will no doubt be individual legal challenges to the different stages of decision-making in the new inadmissibility procedure. The Home Office has tried to write the policy and construct the process to make legal challenges difficult. An application for judicial review can be brought against an act or an omission, but the courts have in the past been extremely reluctant to entertain litigation against delays in immigration decision-making. The vague, indefinite nature of the inadmissibility “process” makes bringing a challenge a little like trying to nail down jelly. That is not to say it is impossible, though, and the referral to the Third Country Unit for consideration under the inadmissibility process certainly sounds like a decision of sorts (despite careful protestation to the contrary by the Home Office in the guidance).

There may be a more strategic level challenge as well. This will face different difficulties if based on a challenge to compatibility of the inadmissibility process with the Refugee Convention.

All this means more work for the lawyers and more culture wars for Priti Patel, Boris Johnson and the authoritarian right. In the meantime, genuine refugees as defined by the Refugee Convention will be denied their rights under that Convention, stuck in limbo for an indefinite period and their new lives in this country will get off to a protracted, unpleasant, disabling beginning. Those whose refugee cases are ultimately to be rejected will be supported for months or even years while the Home Office does nothing.

There are two things that might change the unworkability of the new rules. The first is if the UK government reaches removal agreements with one or more countries, thereby enabling the inadmissibility process to begin to have some practical effect other than delay.

The second is that primary legislation might well be needed to make removals practical. A full “white list” of safe countries, statutory presumptions, ouster clauses, revocation of section 2 of the 1993 Act and more are all perfectly possible when your government has an 80 seat majority.

If refugees physically present in the United Kingdom are to be removed to a third country, I would suggest that is legally if not morally different to the Australian policy of intercepting and preventing the arrival of refugees in the first place. The proposed UK approach amounts to evasion of responsibility whereas the Australian approach is avoidance. It is also very different from the allocation of responsibility within the EU, a supra-national common asylum system with clearly defined common standards and enforcement mechanisms.

This all makes the government and people of the United Kingdom seem rather pathetically weak. Other countries in Europe deal with far, far more refugee claims than we do. It is only us who cannot cope with a few refugees and whose government feels the need to evade our international responsibilities under the Refugee Convention. I prefer Angela Merkel’s famous words when faced with a genuine refugee crisis: we can handle this.

December 2, 2020

The new immigration system arriving imminently – what to consider now

Brexit is here! New perspectives pr pld nightmares? Surely noting good for non UK workers, specially from EEA who

As of Thursday 22 October, we have more details on the new immigration system as the Home Office has now confirmed the content of the new Immigration Rules. With the Brexit transition period ending soon, and the new rules taking effect for non-EEA nationals from 1 December 2020, all employers need to be ready for the new immigration system.

Employers, employees and individuals need to consider how they can prepare now. Brexit spells the end of freedom of movement for nationals of the EU, and a new system will apply to all non-British nationals in the UK, including EEA and Swiss nationals. Employers need to start preparing for this change now, including understanding the proposed new rules, checking recruitment plans and budgets, obtaining or extending their sponsor licence and assisting staff with applications for work visas and the EU Settlement Scheme.

What’s changing?

EU workers EU workers and their family members who are in the UK now need to ensure they have obtained the right to stay in the UK under the EU Settlement Scheme and have applied for pre-settled or settled status. Those in the UK now or arriving any time up to 31 December 2020 have until 30 June 2021 to apply under the EU Settlement Scheme. Those arriving after 31 December 2020 will be subject to the new rules.

In addition, EU nationals who will be relocating to the UK after 1 January 2021 will need to satisfy an English language requirement, something they have not had to consider previously. This will apply to their family members also. Remember that the new system imposes a mandatory obligation on any EU national, and any EU family member, who wishes to continue to live and work in the UK.

Non EU workers Currently, non EU employees coming to work in the UK need to obtain a Certificate of Sponsorship (work permit) before they can apply to work in the UK. Employees, including those employed in partnerships and partners themselves, generally apply under Tier 2 of the current points based system to enable them to work in the UK as so-called sponsored skilled workers.

Under the new system, applicants will need to gain at least 70 points and demonstrate that they have a job offer from an approved and licensed sponsor, that the job is at the required skill level, and that they can speak English at the required level.- this in order to obtain a ‘skilled worker visa’. This is broadly similar to the present system. The scheme will open on 1 December 2020.

Most importantly, skilled worker visas will apply to all non British nationals, including EU nationals. From 1 January 2021 both EU and non EU citizens will be treated equally – until now, EU nationals have been able to live and work in the UK without specific permission to do so, under the freedom of movement provisions. The ‘skilled worker visa’ to work in the UK looks very similar to the current Tier 2 visa issued to sponsored skilled workers, with a few key differences, including:

The minimum salary threshold will be reduced from £30,000 to £25,600, or the ‘going rate’ of an occupation-specific threshold. The applicant will need to meet whichever threshold is higher in order to qualify
The minimum skills threshold will be reduced from degree level (RQF level 6) to RQF level 3 (A Level equivalent) – meaning that lower level and administrative level jobs may qualify in a way that they do not now
The resident labour market test will be removed – there will no longer be a requirement to advertise a job to local workers before recruiting foreign nationals
There will be a suspension on the cap of the number of skilled visas issued – currently the cap is set at around 21,000 visas per year: this will end.

A few key changes coming in with the new skilled worker visa system include the following, affecting new hires and intra-company transferees:

Intra-Company Transfer (ICT) visa holders will be able to switch from within the UK into the new Skilled Worker visa.
Previously, Tier 2 ICT visa holders needed to leave the UK for 12 months (the ‘cooling off period’) and apply for a fresh entry visa, unless they were a high earner (earning over £159,600 per annum). Tier 2 ICT Migrants are now permitted up to five years in the category in any six.
Current Dependant visa holders (family members) will now be able to switch from within the UK into the new Skilled Worker visa. Previously, Dependant visa holders needed to leave the UK and apply for an entry visa to return in this capacity
Under the current rules, Tier 2 General visa holders have been able to stay in the UK for up to six years. Under the new rules, the six year residence limit on Skilled Workers has been abolished, so there is no time limit on how long they can be issued for – they can now be extended indefinitely
You can no longer take into account guaranteed annual allowances/benefits for the purposes of calculating the minimum salary for the Skilled Worker category (you can still do so for ICT provided they would also be paid to a local worker in similar circumstances). In effect, this means that only base salary will count towards the minimum salary requirements.
Tier 5 visa holders – those here as temporary workers including interns or charity workers – will be able to switch into the new Skilled Worker route from within the UK. Previously Tier 5 visa holders needed to leave the UK and apply for fresh Entry Clearance (an entry visa).

Practical tips

In view of the changes, what do employers need to think about and how can they prepare now?

Those employers without a sponsor license must consider whether they will need a license to expand or even continue their operations in the near future. The Home Office are urging all employers, even those who do not currently employ or who have no plans to employ non British nationals, to obtain a sponsorship license. The build-up of outstanding license applications means long processing times – employers need to allow 8-12 weeks as opposed to 2-4 weeks, even for straightforward applications, so applying as soon as possible is advisable [a priority service will be available from 12 November for a fee of £500]
Employers with a sponsor license should take action to deal with the surge in EU national employees who must now be sponsored: this will involve budgeting for the additional visa costs, and training HR on the legal right to work implications, to ensure they have the employees they need and are fully compliant
Employers will need to continue performing right to work checks on all employees in the same way as they do now until 30 June 2021
The system will continue to be expensive – employers will need to factor in visa fees, the Immigration Health Surcharge (which has now risen to £624 per person per year), the Immigration Skills Charge (between £364 and £1000 per person per year) , and fees for all dependents – the total payable per application is not insignificant
Review whether a non sponsored working visa route may be suitable for current and potential employees – consider the Global Talent, Innovator or Start up visa routes which provide skill specific routes to live and work in the UK, while Youth Mobility and UK Ancestry visas are available for some individuals and may be applicable for eg, trainees and interns
A new post study work route will open up in 2021 which will allow those who have been students to work for a UK employer for up to two years, without being sponsored by that employer.

Most importantly…

Act now! These changes are coming in imminently, with applications for skilled workers opening on 1 December 2020. Employers need to focus on recruitment needs and assess what the business will require over the coming years, in order to ensure they have the personnel they need in place by the required time. There is a clear vision of where the government intend to go in terms of immigration, and employers need to be prepared to survive any delays or confusion surrounding the implementation issues which are bound to arise between now and the new system’s arrival on 1 December 2020, and following the start of the new system, particularly as it applies to EU nationals, in January.

UK based businesses should upskill their HR teams on sponsor licence management and the requirements of the new system – it’s crucial to make sure this is done so they are ready to go in, or ideally before, January 2021. Employers need to stay ahead of the curve with changes and updates: immigration policies normally have at least two major updates per year, though the pace of change has significantly increased in recent years. Significant adjustments will continue to be necessary as the post Brexit immigration system is established, and we anticipate frequent updates throughout 2021 and beyond.

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