Intervention by the Courts

Updated 30 March 2023: HIGH COURT RULES MIGRANTS’ DATA RIGHTS MUST BEPROTECTED

A High Court judge has agreed with Open Rights Group and the3million that the immigration exemption in the UK Data Protection Act 2018 is incompatible with General Data Protection Regulation (GDPR).

It is the second time that ORG and the3million have taken the government to court over the immigration exemption, which allows the Home Office and private companies to refuse requests by individuals for access to personal data held about them on the grounds that it might “prejudice the maintenance of effective immigration control”. This denial can cause life-changing harms by preventing migrants from being able to challenge mistakes in the data that is held about them, and therefore being unable to effectively challenge immigration decisions. For example, an asylum-seeker who has been refused by the Home Office needs access to their personal data to effectively lodge an appeal. Application of the immigration exemption, and the withdrawal of that access, could result in genuine asylum-seekers being deported back to countries where they face a real risk of persecution and serious harm.

On Wednesday 29th March, the High Court agreed with the3million and ORG that the immigration exemption contained within Schedule 2 of the Data Protection Act 2018 is incompatible with Article 23 of the UK GDPR. The ruling is a victory for migrants’ data rights in an increasingly hostile environment in the UK, where migrants are treated as second-class citizens. It also represents another instance of this government trying to chip away at the whole human rights framework post-Brexit.

Updated 27 January 2022: Guardian: Home Office accused of ‘bullying’ asylum seekers into handing over phones

Judicial review begins in high court accusing government of operating a blanket policy in ‘complete secrecy’

Three asylum seekers brought a case to the high court on Tuesday claiming that the home secretary operated a secret, blanket policy to seize mobile phones from people arriving on small boats and then download the data from them.

The unpublished policy for the handover of the new arrivals’ phones operated between April and November 2020. It is likely to have involved the confiscation of thousands of mobile phones, the court heard.

Opening the case, a judicial review, Tom de La Mare QC, representing one of the three asylum seekers, referred to as HM, told the court that after Home Office officials seized their phones they were “bullied” into handing over their pin numbers so that officials could unlock personal information including emails, photos and videos and download them to an intelligence database called Project Sunshine.

He added that those who had their phones confiscated on arrival in the UK were given a receipt containing a Home Office phone number to call to try to retrieve their phones. Many waited several months before getting their phones back.

[…] Privacy International, an organisation that specialises in data and privacy issues, has been granted permission to intervene in the case.

See here for more on Privacy International: https://statusnow4all.org/the-uks-privatised-migration-surveillance-regime-a-rough-guide-for-civil-society/

Updated 17 January 2022: Independent: Home Office threatened to deport asylum seekers for crimes they did not commit

The Home Office has been threatening asylum seekers with deportation for alleged crimes they did not commit, it has emerged.

A Court of Appeal judgment revealed the existence of “notices of liability to detention”, which were handed to migrants crossing the English Channel on small boats.

The documents claimed they were “illegal entrants” and “may be liable to removal or deportation from the United Kingdom”.

[…] But judges said the Home Office had misinterpreted the law and that crossing the Channel by dinghy to seek asylum did not amount to illegal entry.

Evidence revealed during a successful appeal by asylum seekers who were wrongly jailed for steering small boats said “a number of the official documents” had been issued, and caused immigration interviews to “proceed on an erroneous basis”.

Judges found that a “heresy about the law” had originated among Home Office officials and been passed on to prosecutors, defence lawyers and the courts – sparking several unlawful prosecutions.

Updated 5 October 2021: Guardian: UK asylum seekers in hotels should have been given money for phone calls, judge rules and here: https://statusnow4all.org/concerns-about-the-use-of-army-barracks/

Thanks to No Deportations – Residence Papers for All: Return of Ouster Clause in Nationality and Borders Bill

Once again, this time in the Nationality and Borders Bill, the Home Office seeks to oust the jurisdiction of Senior Courts from considering an appeal from a first-instance immigration tribunal decision. Its last substantial attempt to do so was the ouster clause it sought unsuccessfully to introduce to the Asylum and Immigration (Treatment of Claimants, etc.) Bill in the 2003-2004 session of Parliament. At that time, it sought to oust statutory appeals and also the jurisdiction of the High Court on Judicial Review.

This time the effort is focused on solely on statutory appeals and is an attempt to exclude appeals to the Court of Appeal. It is still wrong. A first instance tribunal decision on a question of international protection or human rights, involving compliance with international treaty obligations, ought to be capable of appeal, as part of the standard procedure in the UK constitutional order for the rule of law. The Home Office gains nothing by this latest effort. Instead, the rule of law is damaged and the High Court is left to supervise the resulting delinquency if and when it entertains a judicial review against an immigration appeal decision impugned. To understand what is going on, one needs to look at the provision for priority removal notices in the Nationality and Borders Bill.

Read more: Cosmopolis, https://is.gd/FpIuvl

Updated 18 September 2021: Humans for Rights Network ·

We believe the Home Office is breaking the law by using Napier barracks as asylum accommodation and that’s why we are taking @pritipatel to court. In light of the announcement that our Government plans on continuing to use the site to accommodate asylum seekers until 2025, we are left with no other option than to challenge this decision and call for its closure in the courts. Napier barracks is experienced by many held there as a detention camp or prison and was found by the high court to fall short of the minimum standards for asylum accommodation. People seeking safety in the UK should be provided with safe, secure, private accommodation with access to help and support within communities, not held in dilapidated army barracks. Humans for Rights will continue to advocate alongside these men, ensuring no further harm is done to others forced to live there.

#wearewitnesses#napierbarracks#closethecamps#breakingnews#hfrn#humansforrights#refugeeswelcome#humanrights#legalaction

Independent: Home Office facing legal battle over decision to continue using ‘prison-like’ barracks to house asylum seekers

Exclusive: Lawyers say Priti Patel has failed to address issues High Court ruled made military site unlawful

The Home Office is facing a legal battle over its plans to use Napier Barracks as asylum accommodation for four years longer than was initially planned.

Lawyers argue that Priti Patel’s decision to use the former military site until 2026, when planning permission was initially granted until 21 September 2021, breaches the law on the basis that she has failed to rectify issues the High Court ruled earlier this year to be unlawful.

Hundreds of asylum seekers were moved into the camp last September, and remained there despite widespread concerns among doctors, charities and lawyers around Covid safety and mental health support.

Independent: West Mids Councils Launch Legal Action Against Home Office Over ‘Unfair’ Asylum Dispersal System
A group of cross-party local council leaders have launched legal action against the Home Office over its “unfair” and ”fundamentally flawed” asylum dispersal system, which they say is leading to vulnerable migrants missing out on vital services. Six local authorities in the west Midlands, plus Tory-led Stoke-on-Trent, have accused the department of an “irrational, undemocratic abuse of power” after it refused to accept their decision to stop taking in asylum seekers.

The asylum dispersal system is designed to allocate asylum seekers to different parts of the UK, into Home Office funded accommodation, while they await a decision on their claim. However, concern has been mounting in recent years that the placement of these individuals is concentrated in certain parts of the country – often towns and cities with higher levels of deprivation – and that this is causing a strain on local services. The councils – Wolverhampton, Stoke-on-Trent, Coventry, Walsall, Birmingham, Dudley and Sandwell – said they made up a “small proportion of mainly urban councils in the UK” who take in the bulk of asylum seekers awaiting decisions on their claims.

They wrote a letter to the home secretary in March stating that they had decided to suspend participation in the asylum dispersal scheme because large numbers of people were being placed in areas that already exceed the recommended ratio of one asylum seeker to 200 local residents. The Home Office has contested this decision, and the councils have subsequently taken legal action through the High Court in Birmingham “to resolve this issue”.

Read more: May Bulman, Independent, https://is.gd/S58Ecs

17 August 2021: Thanks to Freemovement: The AM (Zimbabwe) test now applies to destitution too

The ripple effects of Paposhvili v Belgium [2016] ECHR 1113 continue to be felt at the boundary of Article 3 ECHR. In the first reported decision of its kind, the Upper Tribunal has found that the “modified” (for which, read “lowered”) test for Article 3 breach in medical treatment cases – enthusiastically endorsed by the Supreme Court in AM (Zimbabwe) [2020] UKSC 17 – now also applies to so-called “material deprivation” or “living conditions” claims.

Ainte (material deprivation, Art 3, AM) (Zimbabwe) [2021] UKUT 203 (IAC) was an appeal against deportation to Somalia. Mr Ainte argued that his removal to Moghadishu “would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3”.

The headnote states:

i) Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.

(ii) In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.

In other words, the almost always insuperable threshold imposed by N v UK [2008] ECHR 453 in such cases (“very exceptional”), which reflected an embedded judicial caution towards the expansion of Article 3, has been superseded. Risk on return should be evaluated on the same terms as the Paposhvili test: “intense suffering or a significant reduction in life expectancy”.

That of course has important implications for all appeals where “mere” socio-economic destitution is pleaded. But it also arguably affects the approach to be taken to risk of suicide — putting AXB (Art 3 health: obligations; suicide) Jamaica [2019] UKUT 397 (IAC) under strain — as well as claims grounded in the real risk of mental health deterioration more generally. In the long term, it could chart a way forward in framing human rights protection for those fleeing climate catastrophe.

A new Article 3 paradigm

There are two ways to view this latest step by the Upper Tribunal. First, since the old N test came to be used in a range of non-medical cases, it is entirely logical and consistent that the modified N test created by Paposhvili should likewise assume that role. As the Upper Tribunal puts it (in paragraph 61):

Thus whilst we accept that the Convention has expanded, and that each incremental spurt of growth must be carefully considered, we do not accept that in applying Paposhvili to this case we would materially, or impermissibly, be adding to that growth. We would simply be applying the law within its existing limits. The N threshold has been modified by Paposhvili and AM (Zimbabwe) and it is that less exacting, but nevertheless very high, test that we must apply.

Second, there is something more significant afoot. Article 3 jurisprudence has long travelled uncomfortably on twin tracks. “Paradigm” cases involved the intentional infliction of harm by a state or non-state actor, for which a real risk of ordinary breach would suffice. For “non-paradigm” exceptions, including “near-death” medical claims and the most extreme humanitarian circumstances, the much higher N threshold applied. Limited branch lines out of N were gradually laid with ad hoc judicial justifications: MSS v Greece (a destitution claim not subject to N because of an EU country’s special obligations to asylum seekers, or Sufi & Elmi where humanitarian circumstances were said to flow from the consequences of armed conflict and thus fell within the “spirit” of paradigm Article 3).

The British Government is trying to bring in new legislation to deter solicitors and barristers from making appeals, but the Courts can have a very important impact on decision-making for people who do not have settled status. Other reports are here: https://statusnow4all.org/concerns-about-the-use-of-army-barracks/

here: https://statusnow4all.org/secret-deal-to-remove-zimbabweans-from-uk/

and here: https://statusnow4all.org/high-court-finally-calls-time-on-asylum-accommodation-delays/