The report

The report details the experiences of 72 such women. Of this sample: 49% had experienced arrest or imprisonment; 52% had experienced violence from soldiers, police or prison guards; 32% had been raped by soldiers, police or prison guards; 21% had been raped by their husband, family member or someone else. Others were fleeing forced marriage, forced prostitution and female genital mutilation. Altogether 66% had experienced some kind of gender-related persecution 48% had experienced rape.

Of course this is hardly the first time fingers have pointed at the UK for it’s attitude to asylum seekers (be them women or men). Consider 2010′s reports of UKBA officials beating and mistreating asylum seeking men. Consider the recent ‘false imprisonment’ claims made against the UKBA by victims of torture. But is Women for Refugee Women reporting on something more pervasive and entrenched – a systematic flaw (or a systematic ‘loophole’ perhaps, depending on who you are). The report argues there is a ‘culture of disbelief’ in the Home Office, which sees refugee women routinely written off:

…three quarters [of the women surveyed] said that they had not been believed, suggesting that the culture of disbelief which has
previously been observed in the Home Office is still a major cause for concern.

The report suggests that by having asylum refused, many women will experience significant hardship and face the possibility of homelessness:

If a woman is refused asylum and is not able to appeal the decision, she may have all her support stopped and be made homeless with no right to work. Two thirds of the women in our research who were refused asylum had experienced destitution, and more than a third were destitute at the time they participated in this research.

 The UN’s 1951 Refugee Convention

As the report explains, “a woman is entitled to claim asylum if she has a well-founded fear of being persecuted in her own country for one of the five grounds set out in the 1951 Refugee Convention: race, religion, nationality, political opinion, or membership of a particular social group, and her own state is unable to protect her. Persecution has been interpreted as serious harm, inflicted or threatened intentionally on the individual or on the group of which she is a member. Proving serious harm is not in and of itself enough to qualify for refugee status; the applicant must also show that this is linked to one of the five grounds set out in the Convention”.

This creates a huge difficulty for some women. Picture the scenario of a female refugee arriving into the UK who first, having been raped in her country of origin, is shrugged off by the UKBA as a desperado seeking to breach our borders and find solace in utopian Britain; then, having at last persuaded staff to hear her story, she must show that the rape she suffered was connected to one of the 5 acceptable grounds as set out by the 1951 Convention. The report exemplifies:

…even if a woman is raped by police who attack her in retribution for her political activities,the rape may be seen as a regrettable incident driven by sexual desire rather than a serious harm.

Our courts

But recent domestic court decisions would suggest that cases of rape ought to be seen as persecution/serious harm. As Lady Hale said in 2005 in the House of Lords case Hoxha:

…sexual violence and rape may be an actual weapon or a strategy of war itself, rather than just an expression or consequence.

So we can make the link between rape and the 5 grounds. Where there remains doubt  is in how the UK requires refugee women to prove the harm done to them.

The recommendations

The report makes the following recommendations to ensure a better system for the vetting of refugee women:

1. Improve the quality of asylum decision-making

Ministers should show leadership on the importance of breaking down the culture of disbelief in the Home Office.

Training and guidance should be put in place for judges on immigration tribunals on the nature and impact of gender-related persecution.

2. Ensure access to free quality legal advice and representation for all asylum seekers

3. End the destitution of those refused asylum

Grant asylum seekers permission to work if their case has not been resolvedwithin six months or they have been refused, but temporarily cannot be returned through no fault of their own.

Provide welfare support for all asylum seekers who need it, up until the point of return or integration.

The 5 key areas

1. Work Permits (Episode 1 of the Diwar family story)

2. Indefinite Leave to Remain (Episode 2 of the Diwar family story)

3. Spouse Visas (Episode 3 of the Diwar family story)

4. Naturalisation (Episode 4 of the Diwar family story)

5. Student Visas (Episode 5 of the Diwar family story)

The series is called “UK Visas Made Easy”. A catchy title we think. Check out our first video in the series below – Work Permits. The others will be released throughout next week.

The results are in..

The ONS reports that in the year to September 2011 was 252,000. The Government’s hopes were to see a decrease in the numbers of non-EU citizens. But, as the ONS reports:

Citizens from non-EU countries continue to be the largest group of migrants to the UK compared to British and the rest of the EU. An estimated 343,000 non-EU citizens arrived to live in the UK in the year to September 2011, which is 58 per cent of all immigrants. This is slightly higher than the estimate of 326,000 who arrived in the year to September 2010.

Why do people want to come to UK?

The ONS report highlights the key reasons for why people are so keen to migrate to these shores:

The most common reason given for migrating to the UK is formal study, which has been steadily rising since 2009. An estimated 250,000 long term migrants arrived to the UK for formal study in the year to September 2011. This is the highest recorded estimate but is not a statistically significant difference from the estimate of 245,000 in the year to September 2010.

The second most common reason given by migrants to the UK is work-related, which was 184,000 in the year to September 2011. This is similar to the estimate of 204,000 in the year to September 2010 but 24 per cent lower than the peak of 242,000 in the year to December 2007. (Figure 3.11)

Last week I wrote about the Government’s short-cut tactic to reduce overall migration by placing more and more strictures on overseas students; the ONS report will perhaps serve as device for the Government to feel somewhat vindicated in their efforts.

Criticism

Shadow Home Secretary Yvette Cooper was unsurprisingly disparaging:

David Cameron said 12 months ago: ‘No ifs. No buts. That’s a promise we made to the British people.’ Yet these figures show that promise is being broken and the net migration figure of 252,000 is barely changed in the last two years, even with the net rise in British citizens leaving the UK.

Indeed, the 252,000 figure represents an increase of 2,000 from the previous quarter’s (to June 2011) figure of 250,000. Should we be worried? The Government has already employed a tactic impacting overseas students which the Institute of Public Policy Research labelled as “a desire to ‘game’ its own net migration target”. Might we expect similar ‘desperate measures’ in the not-too-distant future?

The case

The difficulty in this case is that the appellant, while their original student visa was made on the basis of the old pre-April 2011 immigration rules, their application for renewal was made when the new rules were in effect. This is why the matter of fairness (see below) became relevant.

In June 2011 the Home Secretary refused the appellant’s application for a Tier 4 Student Visa on the basis that the sponsor College was not an ‘A Rated’ or ‘Highly Trusted Sponsor’; it held a B Rated Sponsor Licence.  Furthermore, the appellant’s course was below degree level as required of all sponsor colleges since the rule changes were announced in March 2011. The appellant’s student visa was to expire on 31 May 2011, at which point the appellant made an application for renewal. Remember now, the rule changes were effective from April 2011. The new rules are tighter, more rigid than the old ones and demand more of both student and sponsor college.

The ‘new‘ Immigration Rules

As per para.116 of the Immigration Rules (paragraphs (da) (e) and (i), the most relevant, are in bold) -

A Confirmation of Acceptance for Studies will only be considered to be valid if:

(d) it was issued by an institution with a Tier 4 (General) Student Sponsor Licence,

(da) where the application for entry clearance or leave to remain is for the applicant to commence a new course of study, not for completion of a course already commenced by way of re-sitting examinations or repeating a module of a course, the Sponsor must hold an A-rated or Highly Trusted Sponsor Licence,

(e) the institution must still hold such a licence at the time the application for entry clearance or leave to remain is determined…

(c) For Confirmation of Acceptance for Studies assigned on or after 21 April 2011, one of the requirements in (i) to (iii) below is met:

(i) the course is degree level study and the Confirmation of Acceptance for Studies has been assigned by a Sponsor which is a Recognised Body… or

(ii)    the course is {a} degree level study and the Confirmation of Acceptance for Studies has been assigned by a Sponsor which is not a Recognised Body …

The appellant clearly failed on (da) in that the sponsor college (the college of which the appellant was a student) was neither A-rated, nor held a Highly Trusted Sponsor Licence. So the appellant application also failed on (e).

Fairness

Given the appellant’s obvious non-compliance with the new rules, the appellant’s argument transformed into one of fairness. Did the Home Secretary act unfairly in failing to give the appellant “sufficient warning of two changes in the Immigration Rules introduced in April 2011″?; the first change being the A-rated requirement, the second being ‘the degree level only’ requirement.

Patel

Here, the Home Secretary’s actions were deemed to have unfairly invalidated a student’s Visa application. Essentially in Patel, it was a failure to swiftly downgrade the institution in question following the rule changes which resulted in the student’s failure to comply with the new rules. This, the UT quite rightly concluded, was through no fault of the appellant’s; it was unfair to deem the appellant’s application invalid, quite unlike this case.

Of fairness, the UT concluded:

…one of the main considerations as to fairness will be the respondent’s treatment of the institution in question and, in particular, her level of knowledge as to whether or not that institution was about to be downgraded.

Asylum seeking torture victims are commencing legal action against the UKBA for ‘false imprisonment’ pertaining to periods of detention at the hands of the Agency. As the Guardian reports, “torture victims are being routinely held in immigration detention centres in breach of the Home Office’s own rules.”

What are the Home Office’s rules?

Rule 35 of The Detention Centre Rules 2001 (Special illnesses and conditions including torture claims) is as follows:

(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.

So, what has the UKBA done now!?

A special report by Medical Justice says that Rule 35 is repeatedly breached by the UKBA. Rule 35 (3) clearly states that a medical practitioner should report on the case of any detained person who he is concerned may have been the victim of torture. But does this happen? Not often enough according to the Medical Justice report. As stated on the Medical Justice website:

Of the 50 cases analysed, only one person was released through the Rule 35  process. Despite years of criticism from NGOs and inspectorates, and a series of damning legal judgments, UKBA remains in breach of its own policy.

Medical Justice flesh out the implications of the UKBA’s failure to follow its own rule. Moreover, they allude to a possible breach of human rights:

 …there are grave and wide‐reaching implications of the government’s failure to follow its own rules. Last year, the High Court found the circumstances of two people’s detention amounted to inhuman and degrading treatment. The need for identifying and safeguarding vulnerable individuals cannot be understated.

Is there a human rights breach?

The lawyers of the victims are not interested in alleging human rights breaches. They are instead gunning for the common law tort of false imprisonment and, better yet, release altogether. But the question still remains, by failing to comply with Rule 35 (above) is the UKBA concurrently breaching Article 3 ECHR?

Article 3 ECHR:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Conclusion

The UKBA are treading a dangerous line here. Either they get their act together and implement carefully thought out procedures which will guarantee routine compliance with Rule 35, or risk not only breaching domestic law, but also the European Convention on Human Rights.

The Case

The appellant, a citizen of Bangladesh, claimed her date of birth to be 16 November 1987.  In August 2009, the appellant applied for entry clearance to the UK as the spouse of a settled person. But in April 2010, the Home Secretary refused the appellant’s application.

The reasons for the refusal were two-fold: firstly, the appellant had before applied for entry clearance as a visitor and had been refused. In that application, the appellant gave her date of birth as being 16 November 1990. For the application subject to the current proceedings, the appellant claimed her date of birth was in fact 16 November 1987. She produced an education certificate showing this new date of birth. But, as we’ve come to expect of this twist-and-turn world of immigration, a document verification report revealed that the certificate was not genuine.

Consequently, the Home Secretary refused the entry clearance application by reference to paragraph 320(7A) of the Immigration Rules, which requires that entry clearance be refused:

…where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts had not been disclosed, in relation to the application.

First tier tribunal

The First tier tribunal judge concluded that the appellant had submitted a false education certificate in order to make her appear older than her true age – likely due to the Immigration Rules (paragraph 277) requiring the appellant not to be under the age of 21 on the date of arrival in the UK.

Double miss!

The judge concluded that the appellant not only failed to satisfy the paragraph 277 requirement, but that she also provided a false document in support of her application, “attracting refusal under paragraph 320(7A)” – see above.

Article 8 ECHR

The judge was satisfied that there was no significant evidence to show that the appellant and her husband had “established a family life together” or that “the marriage was genuine and subsisting” – both requirements of Article 8.

Upper Tribunal

The Upper Tribunal (UT) concurred with First tier tribunal’s conclusions as to the the false D.O.B:

These matters fully persuade us that deception had been sought to be practised on the [Home Secretary] in relation to the current application, where the appellant’s date of birth has been falsely given as 16 November 1987.

The Tribunal concluded:

Whoever put forward the false materials plainly did so dishonestly. The motivation was obvious: to pretend that the appellant was over the age of 21, so as not to fall foul of…the Immigration Rules.

The UT had considered that the appellant might have been an innocent party in all this and that someone else might have given the false D.O.B in the initial application. The UT was, however, unsympathetic:

It matters not that the appellant was not herself dishonest, although she would have to have been extraordinarily supine not to have been aware of what was being done on her behalf.

Article 8 of the ECHR…again

The appellant’s lawyer argued if the appellant were now to make a fresh application for entry clearance as a spouse, she would meet all the requirements of paragraph 277. Dishonesty inherent in a previous application shouldn’t be a factor. So, as was argued, “it would be a disproportionate interference with the rights of the appellant and the sponsor under Article 8 of the ECHR to require the appellant to go to the trouble of making a fresh application for entry clearance.”

Chikwamba

The appellant’s lawyer cited the case of Chikwamba to bolster his argument. Chikwamba centred on the question of whether it was proportionate to require a person to go abroad in order to make a fresh application for entry clearance to the UK as a spouse. The House of Lords agreed that it would be “a disproportionate interference with the Article 8 rights of the appellant and her family”. That the appellant in this case made her application as a spouse was where the likeness to Chikwamba ended, thought the UT. The UT was not willing to overlook the matter of dishonesty, a factor not relevant to Chikwamba:

There are clear, cogent policy reasons why an application tainted by dishonest representation…should be refused.

Although past dishonesty should not be taken into account when considering fresh applications, the UT made clear that it should not also mean that dishonesty cannot be taken into account for Article 8 purposes:

The fact that someone cannot have past dishonesty held against them in their next application for entry clearance does not mean that it must necessarily be regarded as disproportionate in Article 8 terms to refuse their present application, on the basis of that dishonesty.

Decision

The UT decided:

The application the appellant made to the [Home Secretary] was marred by dishonesty. Those who engage, or who might be tempted to engage, in dishonest attempts to deceive the United Kingdom authorities in relation to immigration control need to be aware that such actions will have disadvantageous consequences for those who are the intended beneficiaries of the dishonest conduct.

Requiring the applicant to return to their home country before making a fresh entry clearance application won’t always be proportionate, even where dishonesty is a factor. But the point is paragraph 320(7A) will not be “read down”; that is, the legislation will not be limited so as to achieve an outcome compatible with Article 8 or indeed domestic legislation. But “each case ultimately turns on its own facts”.

The problem I highlighted is that overseas students are included in the net migration figure (which the Government looks to reduce); but approximately 15% of them shouldn’t be – they’re packed into a class of migrants who generally stay in the UK for a lot longer – e.g. spouses. Universities UK, an organisation which represents 134 universities, has attacked what the Institute of Public Policy Research referred to as a “[Government] desire to ‘game’ its own net migration target” saying that limiting overseas student numbers will cost universities, and the UK, billions.

Limiting student figures

In their quest for lower net migration, as the Guardian  reports, the Government will modify student visa regulations by “[placing] a limit on the number of years non-European Union students can spend studying and restrict the number of hours of paid work they can do during and after their degrees”. Furthermore, “ they are no longer allowed to bring their spouses or children with them unless they are enrolled on a postgraduate course that lasts more than a year.”

Universities UK

In 2005, the then-president of Universities UK, Professor Drummond Bone, said:

The Government has previously invested in marketing UK education abroad through the Prime Minister’s Initiative, so we are calling today for more of the same and for other new ideas to attract overseas students. Our ability to recruit the ablest students, and staff, from around the world is critical to our long-term success…In an increasingly competitive market, we need Government support to make the UK more attractive as a study destination, particularly when OECD figures show we are losing out to our competitors in America and Australia in our efforts to recruit internationally.

Today we have a Tory led coalition government (instead of a Labour led one); competition is even more intense; and UK universities continue to lose out to their competitors abroad. But the Government’s unremitting pursuit of lower migration figures deteriorates the UK’s hopes of remaining competitive in the international student market.

Current Universities UK president Professor Thomas says the UK makes around £5bn a year through overseas students. Worse than losing a significant portion of this figure, we risk damaging an industry which he says could be worth £16.9bn by 2025. Not to be shrugged at. The new policies will deter overseas students from coming to the UK. Mr Thomas  called the Government’s policies a ”misunderstanding about the positive contribution international students make”. He concluded:

The government’s approach to student visas must be proportionate and workable, and should not be imposed at the expense of our international reputation and our economic growth…