UPDATE – STUDY RESTRICTIONS: Despite Home Office policy revision, student prevented from sitting end of year university exams and another loses university scholarship opportunity

Since March 2018, the Harrow Public Law team at Duncan Lewis has represented eighteen clients restricted from studying by the Home Office as part of their ‘immigration bail’ conditions. The Home Office substantially amended their policy on study restrictions in May 2018 and said that they had solved the problem. However, we still receive referrals of individuals restricted from studying, and two clients have recently been prevented from sitting their important end of year exams at college and university as a result of study restrictions.

Hostile environment enables Home Office to restrict asylum seekers’ studies

We blogged about this issue last year and you can read the background here. In summary, the Immigration Act 2016 brought in many new provisions designed to enact the ‘hostile environment’. In January 2018, provisions in the 2016 Act introducing a new regime of ‘immigration bail’ came into force. As a result, asylum seekers and other people without leave to remain in the UK were issued with new ‘Bail 201’ forms containing the conditions under which they are allowed to stay in the UK.

Prior to March 2018, under the old ‘temporary admission’ regime, these conditions had generally consisted of restrictions preventing asylum seekers from working, requiring them to report at a Home Office reporting centre, and perhaps requiring them to live in a particular address.

In March 2018, however, we started receiving many reports of asylum seekers being restricted from studying as well. This caused major disruption – we had clients unable to attend educational therapy, ESOL classes or sit their GCSE exams. In some cases, clients who were also care leavers supported by local authorities were threatened with loss of their accommodation and weekly financial support, as this support was contingent on their remaining in education.

In every single case, the Home Office conceded that the restriction should not apply to our client, and removed it. However, in eight cases, we had to issue court proceedings in order to achieve this.

Revision of Home Office guidance to reduce incidence of study restrictions

In May 2018, the Home Office revised its ‘Immigration Bail’ guidance, making significant amendments to the section on study restrictions. This new version (and the most recent version 4.0) contained a lot more detail on to whom and when a study restriction should be applied. It clarifies that asylum seekers with a pending asylum claim should not be restricted from studying. It particularly highlights care leavers as a category of people who should not be restricted. It requires the Home Office to take upcoming exams into account when deciding whether or not to restrict an individual. It established a procedure whereby decisions to restrict study would have to be signed off by a senior caseworker.

Brutal, devastating disruption continues

Despite this, we have represented two clients in the past two months whose studies have been brutally disrupted as a result of Home Office study restrictions. Both were managing to achieve academic excellence despite seemingly insurmountable challenges.

H is a care leaver supported by a local authority, but was studying an Access course and had conditional offers from four universities. He is a dependent on his parents’ pending asylum claims. During the course of applying for a scholarship to cover the cost of the course, he was informed that he did not have the right to study. He had noticed the restriction the previous year but had been told by his previous solicitors that it was an error and not to worry about it. We issued court proceedings, but the Court refused to grant an injunction to allow him to be considered for the scholarship, and as a result he lost the opportunity. Since the court proceedings were issued, the Home Office conceded that the restriction should not apply to him, and have removed it. However, the damage had been done; our client was unable to accept his university offers.

A is currently ‘appeals rights exhausted’, but has an appointment next month (July 2019) to submit further representations. Ineligible for student finance due to her lack of immigration status, A applied to and won a competitive scholarship offered by her university to cover her tuition fees and living expenses. She was on track to complete her first year of studies towards becoming a cancer researcher. Two weeks before her exams started, A’s university told her that the Home Office had said that she no longer had the right to study. No reasons were given; no one asked A whether she was studying or whether she had exams coming up. A did not even receive the form containing the restriction directly, but rather via the university. As a result, A has missed her end of year exams and has had to issue court proceedings to attempt to restore her right to study, which are still ongoing.

What has struck me most in speaking to these clients is the vital importance of their studies to their mental health, and how devastating the disruption has been to them both. Asylum seekers are forced to wait for years in uncertainty, not knowing what the outcome will be, and not knowing how long the wait will be. Living in asylum accommodation, being unable to work, being faced with hostility and discrimination, can all make people feel excluded and as though their lives are stuck on pause, making no progress. Education is a vital path to feeling included, and feeling like they are moving forward in at least one aspect of their lives. A told me her first year of university was like a ‘dream’, that it was the first time since she can remember that she felt ‘normal’ and like she was allowed to do what other young women her age were doing. H poured all his energies into his studies, the one part of his life that he feels that he can control and excel at. Having their studies taken away has devastated and overwhelmed them, triggering existing mental health conditions.

In both of these cases, the Court refused to grant interim relief to allow our clients to study, and not miss their exams and application deadlines. In refusing interim relief, the Court has focused on the fact that the Home Office has the power under the Immigration Act 2016 and its policy guidance to impose these conditions. It is deeply disappointing that the Home Office is not being held to account for its failure to consider the brutal impact on these clients when deciding whether it is necessary to restrict these clients’ studies.

Everyone who has heard about these cases has reacted with complete confusion as to why studies would be restricted. What is the point? What is the legitimate purpose being achieved? How can it be right to prohibit young people from learning? Given that the purpose of ‘immigration bail’ is to maintain contact with people without leave to remain in the UK, how does preventing them from studying achieve this?

We will continue to challenge these disproportionate, pointless and capricious restrictions; and to fight for our clients’ right to study.

Image via Flickr - GoToVan

Greece: a safe country for refugees?

Although normally a caseworker in Duncan Lewis’ Public Law team, I recently lived and worked on Lesvos island in Greece for a month, volunteering with a legal charity. My role was to prepare asylum claimants for their interview with the Greek authorities - this is a vital part of the process for those claiming asylum on Greece, as their claim is decided following an hour long interview assessing their credibility and consistency. Supporting evidence may be submitted; however, most claimants are unable to produce documents corroborating their story, and it is not unusual for claims to be decided on the interview alone.

Detention on Lesvos

Lesvos is one of the main arrival points in Europe for people fleeing conflict, persecution and extreme hardship. The flow monitoring project of the International Organization for Migration reports 1.13 million new arrivals from 1 January 2015 to 12 June 2019.  During 2015, headlines were dominated by tragic mass drownings in the Aegean, and these tragedies continue to occur. The EU Turkey deal, however, greatly reduced the numbers of new arrivals. Agreed in March 2016, the deal is aimed at reducing the number of arrivals of refugees by enabling them to be forcibly returned to Turkey, or else confining them to one of five islands in Greece to undergo the slow asylum process. Those who are assessed as vulnerable - often many months after they have arrived - may have their travel restriction lifted, and they are allowed to travel to the mainland to pursue their asylum claim there. The impact of the EU-Turkey deal was stark: practically overnight, reception facilities and temporary camps on the Greek islands were transformed into detention centres[1][2]. Refugees who had arrived before the 20 March 2016 were transferred to the islands, and subsequent arrivals were held on the islands indefinitely. Conditions, already poor, deteriorated further.

Moria camp: overcrowded, dangerous, lethal

The majority of the 8,000 refugees on Lesvos live in Moria camp. The camp, originally built for 2,000, is now accommodating around 5,000 people. A former military base, it is surrounded by razor wire. Occupants overflow the main camp into the olive grove surrounding the camp, where they live in UNCHR tents, or else makeshift huts constructed from tarpaulins and scrap wood.

Inside the camp, refugees live in tightly packed shipping containers or large tents housing hundreds of people in bunk beds (with only blankets hung between the beds for privacy). According to MSF figures, there are approximately 80 people per shower, and 60 per toilet. The camp smells like raw sewage.

In early January of this year, a young Cameroonian man was found dead in his tent during sub-zero temperatures. Sometimes people chop wood and light fires in their tents to try to keep warm; this led to accidents that killed three people in Moria last year.

New arrivals are given one blanket each; if it is lost (or more likely, stolen), they are not given a new one. Women in the camp avoid using the toilets at night due to the risk of sexual assault. There are piles of rubbish everywhere, people crammed in to shipping containers, UNCHR tents and their own tents made of whatever materials they have been able to find. The electricity is unreliable, supplied only a few hours a day. Running water is supplied only at insufficient wash stations - and cooking facilities are not provided at all.  Those who are unable to afford the bus into town to buy food must wait for hours in line to receive meals.

Desperate medical needs

Around the camp there are notices about the warning signs of hypothermia, and what people should do to prevent it (hot drinks and blankets, neither of which are readily supplied in the camp). Healthcare for those who need it is limited. People must produce evidence of their appointment to police officers outside the health clinic, or else wait outside in the hope that a member of staff passing by will spot them and invite them inside. Otherwise, they queue outside the tents occupied by non-governmental organisations (NGOs) just outside the camp, and hope that they can be seen there instead. Many of these clinics are staffed by volunteers, and there are not enough.  Needless to say, a few health clinics in tents and shipping containers cannot provide for the complex needs of over 5,000 people, many of whom are suffering from serious mental health problems and the lasting impact of torture or other violence.

When I was preparing claimants for their interview, many of them told me about their experiences of torture, imprisonment, sexual violence and forced marriage. Some presented with psychotic symptoms. Others were glazed, unable to hold a conversation. One woman pushed bits of broken metal into her hand as we spoke.

Children in appalling conditions

I was surprised by the number of children in Moria - it seemed as though half the camp were children, their mothers queuing up outside makeshift NGO offices in the camp each morning to register their children for school. Many children endure the same conditions as the adults. Although the Greek authorities have made an effort to house families in nearby towns, I saw months-old babies carried around the camp, even in the freezing cold. One day, I helped the police search for a young girl who had gone missing a few days before. There was no oversight, and no space left in the children’s areas of the camp. Many were therefore staying in the main camp or outside of it, with little adult supervision or intervention. It is worth noting that there are no child psychiatrists on Lesvos.

The impact of the EU-Turkey deal: a failure to protect

The EU-Turkey deal has done nothing to stop people putting their lives at risk to travel to Europe to seek protection. It has only meant that those who are unlucky enough to to be found insufficiently vulnerable (and isn't everyone arriving in Lesvos vulnerable, given the journey they have just made?) risk being sent back to Turkey. In Turkey, the attempted coup in 2016, and the subsequent State of Emergency has placed refugees at greater risk of refoulement[3] (i.e. being sent back to their country of origin, rather than having their claims processed in Turkey). As a result, only 64 refugees have been sent back to Turkey from January to April 2019. The rest wait on the island, sometimes for years, in squalid conditions, to have their claims processed. The minimum conditions enshrined in asylum law are just not being met. Refugees undergo the asylum process in overcrowded, inhumane living conditions, with limited access to healthcare services, exposure to violence and a lack of real protection.

A non-functional, understaffed and under resourced asylum system

The ECtHR has recognised that the conditions for asylum seekers in Greece breach their Article 3 ECHR rights as the conditions amount to inhuman and degrading treatment (see, for example, MSS v Greece). Judges in MSS heard evidence of police tricking asylum claimants into believing that they were not eligible to claim asylum, after being detained in awful conditions. Those who were eventually interviewed found themselves interviewed in the wrong language, or receiving a rejection without a formal refusal letter giving reasons for the decision.

When the asylum system does function, it is chronically understaffed and under resourced. Many claimants have their interview stopped if the interviewing officer considers the individual may be vulnerable; as they may require a psychiatric assessment to determine whether they suffer from a mental illness, as this informs the type of asylum process that applies to them. Arranging and conducting this assessment can take up to two years. In my own experience, lack of staff meant that claimants due to be assessed by a social worker (due to potential vulnerabilities such as age, illness etc) had their claims delayed indefinitely. The contracts for the social workers at Moria had ended, with no contract renewals or new employees to take their place.

After grant of status: protection only ‘on paper’

Following a grant of asylum, the conditions are not much better. According to Article 30 PD 141/2013[4], beneficiaries of international protection should enjoy the same rights as Greek citizens and receive any necessary social assistance, according to the same terms applicable to Greek citizens. However, the Federal Constitutional Court ruled on 31 July 2018 that it cannot be generally assumed that recognized beneficiaries of international protection in Greece can be returned, due to the lack of access to provisions such as shelter, healthcare and financial assistance.

A report carried out by Pro Asyl in 2018[5] reports the following:

“The current living conditions of beneficiaries of international protection  in Greece are alarming, as beneficiaries do not only suffer from the lack of integration prospects into Greek society, but they are often faced with inadequate living conditions and humanitarian standards, a precarious socio-economic situation, and even have problems in securing their very existence. Such a situation undermines the effectiveness of the provided protection in line with The 1951 Refugee Convention and European law.”

In early February 2019, the Greek Ministry of Migration Policy announced the gradual termination of accommodation to beneficiaries of international protection living in refugee camps in mainland Greece. The first group of beneficiaries of international protection required to leave their accommodation were those recognized before the end of July 2017, and the deadline for their exit was 31 March 2019.

Refugees also face near insurmountable administrative and bureaucratic barriers preventing access to benefits in Greece, The procedures make no provision to accommodate the inability of beneficiaries to submit certain documents such as family status documents, birth certificates or diplomas.

A Pro Asyl report in April 2019[6] regarding the eviction of refugees from official accommodation reports that:

“The announced eviction of recognized refugees from accommodation in ESTIA flats and official refugee camps will lead to homelessness and destitution for many as very few steps have been taken so far by the Greek authorities in practice to secure the refugees’ autonomous living and equal integration into Greek society”

Those who have nowhere to go can theoretically be accommodated in existing shelters for the homeless in Greece. However their access to these centres is not always guaranteed (as refugees are treated as third country nationals in relation to access to accommodation). Additionally, these shelters have only a limited number of places. In practice, it is almost impossible to find a place there.

In consequence, recognised refugees still have no secure and effective access to shelter, food, the labour market and healthcare including mental healthcare. International protection status in Greece does not guarantee a dignified life for beneficiaries of protection and is no more than protection “on paper”.

EU initiatives are being phased out[7], leaving asylum claimants and refugees unable to meet their basic living needs. Beneficiaries now lose access to camps, UNHCR accommodation and cash only six months after they receive refugee status or subsidiary protection. The state is unable to step in and make up for these losses, citing the high numbers of new arrivals. This results in already-traumatised individuals enduring further hardship. Despite international condemnation, conditions remain inhuman and degrading.

The “crisis” is not over; Greece is not safe for refugees.

Image - Elleanor Wilkins

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Useful links:

https://www.hrw.org/news/2017/01/18/greece-refugees-disabilities-overlooked-underserved

https://www.freemovement.org.uk/returns-to-greece/


[1] https://www.irishtimes.com/news/world/europe/migrants-deported-to-turkey-from-greece-under-eu-deal-1.2597583

[2] https://www.theguardian.com/world/2016/mar/18/eu-deal-turkey-migrants-refugees-q-and-a

[3] https://www.amnesty.org/download/Documents/EUR2542002016ENGLISH.pdf

[4] https://www.asylumineurope.org/reports/country/greece/content-international-protection/housing

[5]https://www.proasyl.de/en/news/deportation-into-a-dead-end-the-situation-of-recognized-refugees-in-greece/

[6] https://www.proasyl.de/en/news/get-out-in-greece-recognized-refugees-have-to-leave-their-accommodation/

[7] https://blog.refugee.info/exit-accommodation-cash/

The Cliff Edge: Why we are challenging Home Office policy to limit support to victims of trafficking

SUPPORTING VICTIMS OF TRAFFICKING AND MODERN SLAVERY

Supporting victims of trafficking and modern slavery is not merely a moral imperative, but also a legal obligation. We are representing two victims, known as NN and LP, who are holding the Home Office to account to ensure that it does not shirk its responsibility to provide adequate support to victims.

The National Crime Agency reported that, in 2018, nationals from 130 different countries were referred as potential victims of human trafficking or slavery to the National Referral Mechanism (NRM), the United Kingdom’s framework for identifying victims. The number of victims referred is growing: in 2018, it was nearly 7,000, compared to just over 5,000 in 2017. In 2016, it was under 4,000. This dramatic rise may be in part due to increased awareness of the scale of the problem and increased reporting of incidents of exploitation. These victims are trafficked from all over the world, and often have very little in common other than their shared characteristic of having been exploited at the hands of traffickers or enslavers.


TRAFFICKED AND TRAUMATISED

NN was trafficked from Vietnam and forced to cultivate cannabis, while LP was trafficked from Albania and subjected to sexual exploitation. NN tried to escape, but was badly beaten and had some of his teeth knocked out. He was subsequently arrested and imprisoned as a criminal offender for his involvement in cannabis cultivation. LP was helped to escape from her traffickers after arriving in the United Kingdom and shortly thereafter gave birth to a daughter. NN has since been diagnosed with Post-traumatic Stress Disorder. Both NN and LP were then required to prove their experiences to the Home Office, in order to be officially recognised as victims of trafficking.

Victims of trafficking and slavery are some of the most vulnerable people in society, and both NN and LP have intensive support needs. The Home Office is obliged to provide support to victims under the Trafficking Convention, and by its own policies, and outsources responsibility for its provision to the Salvation Army. The Salvation Army, in turn, has a number of subcontractors who support victims – through limited financial support, access to safe house accommodation and contact with a support worker. Both NN and LP have support workers who regularly visit them in their asylum accommodation to help with their day-to-day needs.

In early 2019, both NN and LP were conclusively recognised as victims of trafficking under the NRM. This should have been the moment when they were able to breathe a sigh of relief; when, finally, they knew that the Home Office recognised that their traumatising experiences had happened. But there was no such respite. In fact, days after being told that they had been recognised as victims, they were advised that the support they had been receiving had to stop.


JUST NOT OUR POLICY

It is Home Office policy to end support to victims of trafficking and slavery only 45 days after they have been conclusively identified as victims. Victims are told that the support that they have come to rely upon to go about their daily lives, to assist in their recovery and access necessary services, must end abruptly. Many victims have complex mental health needs, have suffered lives of trauma that will take years to recover from. Despite this they are told: yes, we accept that you are victims, but now you are on your own. This drop-off in support has been termed a “sharp cliff edge” by those in the charitable sector who are left to try to fill the gap and support these vulnerable individuals.

NN and LP both sought to challenge the Home Office’s decision to end their support. But, more than this, they sought to challenge the underlying policy ending their support, arguing that it is in breach of the United Kingdom’s obligations to support victims of human trafficking and slavery.

Challenging the lawfulness of a policy takes a long time, however. And neither NN nor LP had time to spare – they would be stripped of their support arrangements after 45 days. They therefore sought an order from the Court that, while the lawfulness of the policy was being considered by the Courts, neither their support, nor the support of any other victims of trafficking or slavery in the United Kingdom, could be stopped simply owing to this policy – given that is potentially unlawful.


A SERIOUS RISK OF IRREPARABLE HARM

At a hearing on 10 April, the Court found that there was a “serious risk of irreparable harm to a significant number of vulnerable victims of slavery and trafficking if their support were to end after 45 days”. In witness statements from support providers before the Court, the negative effect that the ‘cliff-edge’ drop in support can have on victims was outlined:

"The 45-day deadline for support ending can be very daunting for victims. Having built a relationship with their key worker, having felt safe and secure. Having received support to access the care that is needed, the prospect of that support no longer being there is a blow…The knowledge to victims that the one-to-one relationship that they have built with their support [worker] is coming to an end often causes great anxiety."

                Rachel Collins-White of Unseen UK, in her witness statement before the Court

The Home Office had argued that there was a policy by which support workers could request a brief extension of support for victims, and therefore this meant that there was little risk of harm. However, the Judge rejected this assertion, finding that there is no published policy regarding these extensions, that in practice few extensions were requested and there is little transparency about how such requests are decided by the Home Office. In LP’s case, an extension request had already been rejected.


IMPACT

Owing to the serious risk of irreparable harm to a significant number of victims of trafficking and slavery, the Court ordered that the Home Office cannot rely purely on its ‘45-day rule’ policy to cease the support that a victim is receiving, for the time being. This is to be the case until the lawfulness of the policy is decided in a hearing in July, when the Court will decide whether the Home Office has an ongoing obligation to support victims, as NN and LP argue.

In the meantime, victims who are receiving support will continue to receive it, unless either they or their support worker decide that they no longer require it. This means that, for the time being, a barrier has been put before the cliff-edge.

 

LEGAL TEAM  

The Claimants are represented by Director, Ahmed Aydeed and Caseworkers Karen Staunton and Harvey Slade of the Birmingham Public Law department at Duncan Lewis, who have instructed Chris Buttler and Zoe McCallum of Matrix Chambers, and Miranda Butler of Garden Court Chambers.

Image via Flikr – Gramicidin

Limiting the Time Limit for Immigration Detention: The Danger of the ‘Foreign National Offender’ Exemption

Limiting the Time Limit for Immigration Detention: The Danger of the ‘Foreign National Offender’ Exemption

If a time limit for immigration detention is implemented, excluding people with previous convictions, then that time limit is fundamentally unfair and sets a dangerous precedent.

Prisoners of history: how a village in Nepal became a hostile environment

Prisoners of history: how a village in Nepal became a hostile environment

The dust is still settling in Nepal but the country is, arguably, on the road to stable peace. Yet, the case of Thawang shows how wars can continue to claim victims. A persisting fear of this tiny minority group, rooted in misperceptions of their extremist views, sees them continue to be labelled by narratives informed by war.

Safe but not free: how the UK has capped the dignity of people seeking asylum

Safe but not free: how the UK has capped the dignity of people seeking asylum

Without any alternatives, living on just over £5 a day puts people in poverty, where they are unable to support themselves and are forced to use food banks. The Lift the Ban campaign estimates an economic gain of £42.4million as a result of additional tax revenues and savings, if those seeking asylum are allowed to work.

Home Office restricting asylum seekers from studying in the UK

Home Office restricting asylum seekers from studying in the UK

The study restriction saga is a prime example of the effects of the UK government’s ‘hostile environment’ policy. It shows how statutory powers, granted for a specific and restricted purpose, can take on a life of their own in the hands of a government which has vowed to make life difficult for those without legal status in the UK, blind to the consequences for asylum seekers and vulnerable individuals.

Reflections on Volunteering in the Refugee Squats in Athens

Reflections on Volunteering in the Refugee Squats in Athens

Cooperation and collaboration between small ground-level non-profit services is fundamental to improving outreach and increasing awareness, propelling innovation and growth, reducing duplication, building resilience, cutting costs and increasing funding opportunities; all allowing a sustainable long-term future.

The Anatomy of the Hostile Environment: A Weekend with Birkbeck School of Law

The Anatomy of the Hostile Environment: A Weekend with Birkbeck School of Law

The talks were bold indictments of a state that has conscripted all areas of society into enforcing its racialised immigration control system, a state that has turned bankers, landlords, teachers, nurses, doctors and even NGO workers into border guards. A state that speaks of humans as ‘illegals’.

Mishka: The Shaw Review 2 is finally here, let’s use this opportunity for immigration detention reform.

Mishka: The Shaw Review 2 is finally here, let’s use this opportunity for immigration detention reform.

Effective detention campaigning is not merely about sentimental hashtags. We must continue to follow solution-based advocacy, with meaningful policy proposals aimed at the changes we expect from the government.

72 hours too many: how pregnant women are let down in immigration detention

72 hours too many: how pregnant women are let down in immigration detention

Two years ago on 12 July, a time limit of 72 hours was placed on how long a pregnant woman could be detained under immigration powers in the UK. This is 72 hours too many.

When justice cannot wait: Duncan Lewis Solicitors challenges the Legal Aid Agency’s rules on backdating of funding

When justice cannot wait: Duncan Lewis Solicitors challenges the Legal Aid Agency’s rules on backdating of funding

Solicitors and barristers have to make a stark choice. Either they take on the work knowing that they will not be paid for it, or they refuse to act on the basis that funding is not in place and in the knowledge that their client’s access to justice will be obstructed as a result.

The Harm of Detention

The Harm of Detention

The deprivation of liberty, for the purpose of administration, harms people. The current process risks ignoring the different ways an individual can become vulnerable due to the harm of detention by relying solely on screening for pre-existing vulnerabilities.

Mishka: Speak to the brain, not just the heart

Mishka: Speak to the brain, not just the heart

As an advocate and an activist with the first-hand experience, I am not here to perform my experiences for anyone’s consumption; I am here to talk about the bigger picture. I am here to talk about real change.