0_GUIDANCE INDEX

The information in this section provides some general guidance on legal issues relating to immigration and asylum. In this section
1. 1_Basic Concepts in Immigration Law 2. 2_Deportation 3. 3_Deprivation of Nationality 4. 4_Detention 5. 5_Disclosure of Documents 6. 6_Exclusions 7. 7_Powers to revoke entry clearance and to cancel leave to enter and remain in UK 8. 8_Removals 9. 9-A_Special Immigration Appeals Commission (SIAC) Guidance Notes
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9-B_Guidance note 1: Overview of deportation cases before SIAC 9-D_Guidance note 3: Who has an immigration appeal and how it is brought before SIAC 9-E_Guidance note 4: Detention and Bail 9-F_Guidance note 5: Legal test for Non-Conducive to the public good: Deportation, Exclusion and Deprivation 9-G_Guidance note 6: Safety on return in Deportation Cases 9-H_Guidance note 7: Deprivation of Nationality 9-I_Guidance note 8: Refugee Law Issues 9-K_Guidance note 10: Fair Hearing: ECHR Considerations 9-L_Guidance note 11: Information sharing with receiving States

10. 10_Support for Asylum Seekers and other Persons Subject to Immigration Control Overview 11. 11_The Role of Expert Evidence in Litigation

Relative Supporting Guidance:
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12. Onward Appeal Rights Chart 13. Onward Appeal Rights Panel Hearing Chart 14. Article 3 of the European Convention on Human Rights 15. Section 25 of the Immigration and Asylum Act 1999 16. Summary of Biometrics Powers in Immigration Acts 17. Biometric Immigration Documents Guidance Note 18. IND and Race Discrimination Law 19. Guidance on HM Cutters (UK Border Agency) 20. E-borders: An Overview of the Legislative Framework 21. International Travel Ban Guidance Note 22. Immigration Appeals Presentation 23. Carriers Liability Guidance Note 24. Illegal Working Guidance Note 25. Guidance_Note-Is_Deporation_Compatible_with_ECHR 26. Guidance_Note-Is_Deportation_Conducive_to_the_Public_Good

1_Basic Concepts in Immigration Law
A - Those with a right of abode and persons subject to immigration control 1) A fundamental distinction in immigration law is between those who are subject to immigration control under the Immigration Acts and those who are not. 2) Section 1(1) and (2) of the Immigration Act 1971 distinguish between those who have a right of abode (for example, British citizens) and those who are subject to immigration control. 3) In addition, some people are exempt from immigration control – like diplomats or heads of state. European Economic Area (EEA) nationals are not subject to immigration control because they are subject to a different regime under the Immigration (EEA) Regulations 2006 (as required by European law). 4) Unlike other countries, the concept of right of abode, rather than simple nationality, determines whether you can come and go freely from the UK. 5) British citizens have a right of abode in the UK. As a result of the UK’s colonial past, there are several other categories of British nationality who do not have a right of abode. For example British Nationals (Overseas) who are from Hong Kong, British protected persons who tend to come from the Indian subcontinent, British Overseas citizens who are mainly those of Asian origin from East Africa, or from Malaysia. Generally speaking, people holding these other types of nationality will be dual nationals ie also a national of Pakistan or China or Malaysia etc. B - What does being subject to immigration control mean? 6) At its simplest, this means a person will need permission of some sort to come to the UK, and may be removed or deported from the UK. More technically, in recent legislation 'a person subject to immigration control' means someone who needs leave to enter or remain in the UK whether or not such leave has been given. A person who is subject to immigration control may also be subject to other measures like immigration detention, and there are various immigration related criminal offences that such a person can commit. C - Permission to come to the UK Entry clearance 7) A person subject to immigration control who is not in the UK may need a visa (technically called entry clearance) to come to the UK. There are two categories: visa nationals and non-visa nationals. There is a list of visa nationals in Appendix 1 to the immigration rules. 8) A visa national needs entry clearance (a visa) to come to the UK. A non-visa national does not need an entry clearance (an entry certificate) to come to the UK for fewer than 6 months, but does need an entry clearance to come to the UK for more than 6 months or for a category in the immigration rules which requires him to have entry clearance. It is not possible to apply for entry clearance under the immigration rules to claim asylum. 9) Entry clearance is granted by an entry clearance officer (ECO).

Leave to enter 10) Historically, a person subject to immigration control who arrived at port was questioned (examined) by an immigration officer, and granted or refused leave to enter the UK. 11) The position is now slightly more complicated. 12) In most cases, entry clearance has effect as leave to enter when the person arrives in the UK. In other words, if you have a visa this automatically turns into leave to enter when you get to the UK. The immigration officer can still examine, but this is to decide whether or not to cancel the leave to enter. 13) In addition, in some cases – for example, asylum cases - the person may be temporarily admitted to the UK while their application for leave to enter is being considered. In this situation, while they are obviously “in” the UK, they have not technically “entered” the UK. In asylum cases, if it is decided they are a refugee then they will be granted leave to enter but by the secretary of state (ie by an official on behalf of the Home Secretary) rather than an immigration officer. Leave to remain 14) A person who is in the UK with leave who applies to stay for longer in the UK applies to vary leave and, if successful, is granted leave to remain by the secretary of state. Those who are in the UK illegally and who are granted leave are also granted leave to remain. 15) Leave to enter or remain may be granted subject to conditions such as a prohibition on working or claiming public funds. D - So what are the main types of migrants? 16) There is a basic distinction between (1) those who come to the UK in one of the lawful managed migration categories, (2) those who seek asylum or to remain on human rights grounds, and (3) those who come to, or remain in, the UK illegally. There is some overlap between these last two, and any particular individual may move between the categories. 17) The different managed migration categories can be found in the immigration rules. These change all the time, so use the version on the UKBA website rather than in the books. They include, for example, visitors, UK ancestry, work permit holders, husband/wives/children of those who are settled in the UK. A person usually has to satisfy the criteria in the rules before he is granted entry clearance or leave. Although leave may always be granted outside the rules as a matter of discretion. Note that a new points based system, like that in place in Australia, is imminent. 18) A person who is an asylum-seeker is claiming that removal from the UK to his country of origin would be contrary to the UK’s international obligations under the 1951 refugee convention because he will be persecuted. If he succeeds in his claim, he will be recognised as a refugee and granted leave. A person who makes a human rights claim is saying it would be contrary to the UK’s international obligations under the European convention on human rights 1950 to remove him to the destination country. Frequently, but not exclusively, this is on Article 3 grounds (real risk of torture, or inhuman and degrading treatment in the destination country) or Article 8 grounds (disproportionate interference with right to respect for family and private life) – for example, if he will be separated from his wife and children who will be left behind in the UK. 19) Those who enter illegally (illegal entrants) or who remain illegally (overstayers) are the third category. They may or may not also be asylum-seekers and/or make a human rights claim.

E - Removal from the UK 20) A person who is subject to immigration control can be removed from the UK. 21) At its simplest, this is when the person no longer has any legal right to be in the UK, and when his appeal rights have been exhausted. 22) This is typically when a person:
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is refused leave to enter at port has entered the UK illegally (for example if they came in the back of a lorry) has overstayed his leave (remained longer than he was allowed to) has breached conditions attached to his leave is a dependent family member of any of the above

F - Deportation 23) At its simplest deportation is the way in which a person is removed from the UK if they have been convicted of a criminal offence, or his presence in the UK is otherwise not conducive to the public good. Dependent family members can also be deported. 24) While a deportation order is in force, a person is also prohibited from coming back to re-enter the UK. A deportation order remains in force until it is revoked by the secretary of state. G - Detention 25) Person subject to immigration control may be detained in certain circumstances. Broadly speaking, there are powers to detain while a person is examined about his immigration status. This could be, for example, where an immigration officer is deciding whether to grant leave to enter to a person at port. There are also powers to detain in order to remove or deport a person. H - The appeals system 26) Certain decisions made by an immigration officer or the secretary of state are defined as immigration decisions. There is a right of appeal against an immigration decision, subject to some limits and exceptions. A refusal of leave to enter or entry clearance is an immigration decision, for example. So is a decision that a person is to be removed or deported from the UK. See section 82 of the Nationality Immigration and Asylum Act 2002 for the complete list. 27) The right of appeal is to the asylum and immigration tribunal (AIT). An appeal is presided over by one or more immigration judges. When an appeal has been heard, it is possible for a party to apply for reconsideration of the decision if there has been an error of law. Further appeals to the court of appeal and on to the House of Lords on a point of law are then possible. 28) If permission for reconsideration is refused, it is possible for this decision to be reviewed by a High Court judge on the papers. I - Judical review 29) Where an entry clearance officer, an immigration officer or the secretary of state makes a decision where there is no right of appeal, the person may seek judicial review in the administrative court (on usual administrative law principles of legality, irrationality or procedural unfairness, and on human rights grounds).

30) Examples of when this might be done include:
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where the secretary of state decides there is no fresh claim in asylum and human rights cases (paragraph 353 of the immigration rules) where a person’s asylum or human rights claim is certified by the secretary of state as clearly unfounded (section 94 cases) where a person who has made an asylum/human rights claim is to be removed to a safe third country e.g. France rather than their country of origin (third country cases) where a case is certified because the person has already brought an appeal on an issue, or should have done so (section 96 cases)

31) The consequences of the above examples are that the person has no right to appeal in the UK or no appeal at all – so the only recourse for the person is to judicial review. 32) Judicial review may be sought of other decisions including a decision to detain. 33) There is an onward route of appeal from the judgement of the administrative court to the court of appeal and from there to the House of Lords on a point of law. J - Sources of law 35) The main statutes are:
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Immigration Act 1971 British Nationality Act 1981 Immigration and Asylum Act 1999 Nationality, Immigration and Asylum Act 2002 Asylum and Immigration (Treatment of Claimants etc.) Act 2004 Immigration, Asylum and Nationality Act 2006 UK Borders Bill 2006 (currently before Parliament) Human Rights Act 1998

36) There is a great deal of secondary legislation – the main instruments are in Phelan. 37) The best source for caselaw is Butterworth online, or on the electronic immigration network database. There are also the immigration and nationality law reports in hard copy in the main library. 38) The main practitioners’ text is Macdonald (2006), but this is slightly dated. 39) For a very easy introduction to immigration law (just to find your way around at the start) see the joint council for the Welfare of Immigrants Immigration Law handbook (2006). 27 September 2007

2_Guidance Note: Automatic Deportations
Power and duty to deport 1. The Secretary of State has the power to deport a non-national if he considers their deportation conducive to the public good (s3(5)(a) Immigration Act 1971). S32 UK Borders Act 2007 provides that the deportation of certain persons is automatically conducive to the public good and the Secretary of State must make a deportation order in such cases unless certain exceptions apply. Who is subject to automatic deportation? 2. Automatic deportation applies (s32 of the 2007 Act) to a person (“foreign criminal”):    who is not a British citizen, who is convicted in the UK of an offence, and either who has been sentenced to a period of imprisonment of at least 12 months

NOTE: „foreign criminal‟ also includes a non-national convicted of, and imprisoned for, an offence specified by order under s72(4)(a) of the Nationality, Immigration and Asylum Act 2002 but this has not been commenced and there is no order under the 2002 Act. 3. For this purpose, a period of imprisonment includes:   detention in an institution other than a prison, such as a hospital or an institution for young offenders, and imprisonment or detention for an indeterminate period, provided that it may last for 12 months.

But does not include:   a suspended sentence, unless a court subsequently orders that the sentence, or any part of it, is to take effect, nor where a person is sentenced to imprisonment for 12 months‟ or more only because he is sentenced to consecutive sentences amounting in aggregate to more than 12 months.

5. As well as applying to persons convicted after the commencement of s32 of the 2007 Act, automatic deportation is also intended to apply to all persons:   convicted before the passing of the 2007 Act (provided the person was in custody on 1st August 2008 or his sentence was suspended on that date); convicted after the passing of the Act but before commencement,

unless the person has already been served with notice of a decision to make a deportation order under section 5(1) of the 1971 Act. (See article 3 S.I. 2008/1818.) NOTE: the application of the provisions to those convicted after the passing of the Act but before commencement is being challenged in the High Court (El-Sahli).

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Exceptions to the duty to make a deportation order 8. Section 33 of the 2007Act sets out 6 exceptions to the duty to make a deportation order:       where removal would be contrary to the UK‟s international obligations under the Refugee Convention or the ECHR (s33(2)); where the Secretary of State thinks the foreign criminal was under the age of 18 on the date of conviction (s33(3)); where removal would breach the rights of the foreign criminal under the European Community Treaties (s33(4)); when, essentially, the person is subject to extradition proceedings (s33(5)); when, essentially, the person is subject to any of the listed provisions relating to the mentally ill (s33(6)); where removal would contravene the UK‟s international obligations under the Trafficking Convention.

In addition, those exempt from deportation under sections 7 and 8 of the 1971 Act (Commonwealth and Irish citizens, crew, diplomats etc) are also exempt from automatic deportation (s33(1)). 15. However, even where there is no duty to make a deportation order because an exception applies, the Secretary of State retains the discretion to make a deportation order under the 1971 Act (s33(7)). Indeed deportation is automatically conducive to the public good even where the exceptions in s33(2) and (5) apply (s33(7)). What are the appeal rights? 16. The decision of the Secretary of State that the automatic deportation provisions apply is notified to the individual and a right of appeal attaches to that decision (s82(3A) NIA Act 2002). This appeal is out of country unless the foreign criminal (a) has made an asylum or human rights claim while in the UK which has not been certified as clearly unfounded or (b) is an EEA national or family member and claims that the decision breaches his rights under the Community Treaties in respect of entry to or residence in the UK (ss 92(4) and 94 NIA Act 2002). 17. There is also an appeal right in respect of a refusal to revoke a deportation order (s82(k) NIA Act 2002). (The deportation order is supposed to be made at the same time as the decision that s32(5) of the 2007 Act applies and the policy intention appears to be that any in country challenge or initial challenge on the basis of an exception should be dealt with under s82(3A) and any application for “revocation” should be made out of country.)

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When can an automatic deportation order be made? 18. With one exception, the Secretary of State can make a deportation order under s32(5) of the 2007 Act when he chooses. An automatic deportation order may not be made while a criminal appeal against the conviction or sentence is pending, or could be brought within time (s34(2) of the 2007 Act). Points to note:  An automatic deportation order can be made while an appeal before the AIT is pending (s79(3) NIA Act 2002).  An automatic deportation order does not invalidate any leave to enter or remain which the foreign criminal has, for as long as the person may not be removed from the UK while his appeal is pending (s79(4) NIA Act 2002).  The policy intention is to assess a foreign criminal‟s eligibility to deportation 12-18 months before release inviting representations from the individual at that stage. The deportation order and immigration decision can then be made simultaneously with the ordinary grounds of appeal being out of country. (However, on occasion an individual who has not been granted bail will be „time served‟ around the time of sentencing.)

When can an automatic deportation order be revoked? 24. The Secretary of State can only revoke an automatic deportation order:    in order to remake the automatic deportation order, having taken action under the Immigration Acts or the Immigration Rules (s34(4)); where he thinks one of the exceptions to automatic deportation applies;, where the application for revocation is made while the foreign criminal is outside the UK.

Points to note:  s34(4) is designed primarily to permit revocation for the purpose of certifying instituted claims under s94 or 96 of the 2002 Act so that they may not be continued with (since neither type of certification is deemed effective against appeals which are already brought or instituted does not work if the claim is already instituted). It is envisaged that s120 notices will be issued at the time of inviting representations which might trigger the use of s96. An individual is free to apply for revocation in accordance with the Immigration Rules (paragraphs 390 and 391) and the general grounds of appeal (s84 NIA Act 2002) out of country.

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What powers does the Secretary of State have to detain? 28. There are essentially 3 powers:  A person who has served a period of imprisonment may be detained while the Secretary of State considers whether he has a duty to make an automatic deportation order because s32(5) applies (s36(1)(a); NOTE: This „thinking time‟ detention is being challenged under article 5(1)(f) ECHR on the grounds that it might not count as taking action with a view to deportation.  There is a power to detain where the Secretary of State thinks that s32(5) applies but pending the making of the deportation order; NOTE: This detention will be necessary for example where a person is „time served‟ around the time of sentencing but where a deportation order still cannot be made because it remains open to the individual to appeal the underlying conviction/sentence (see s34(2)). A person must be detained under para 2(3) Schedule 3 1971 Act when a deportation order under s32(5) is in force against him, pending removal or departure from the UK, unless the Secretary of State thinks it inappropriate to do so (s36(2));

Points to note:   A court determining a criminal appeal against conviction or sentence may direct the person be released from detention (s36(3)); The provisions relating to bail and to release from detention on a restriction order under Schedule 3 to the 1971 Act apply to a person liable to be detained under s36(1) (s36(4) and (5)). Some courts are continuing to make deportation recommendations even when an individual would fall within the automatic deportation provisions. A specific power to detain individuals exists in respect of court recommendations pending the making of deportation orders pursuant to such recommendations. However, this power should not be relied on where it is clear that the individual is being considered under the provisions of the 2007 Act (para 2(1) Schedule 3 1971 Act).

What provisions apply to family members of a foreign criminal? 31. Sections 3(5)(b) and 5(1) of the 1971 Act enable the Secretary of State to deport the family of a foreign criminal subject to an automatic deportation order, with some modifications as to timing (see s37). Section 37 provides that a deportation order may not be made against a family member until 8 weeks has elapsed from when the foreign criminal exhausted his appeal rights against the automatic deportation decision.

September 2009

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3_GUIDANCE NOTE: DEPRIVATION OF NATIONALITY
Power to deprive 1. The Secretary of State may deprive an individual of their British nationality if: a. he is satisfied that deprivation is conducive to the public good and the person would not be rendered stateless (s40(2) and (4) British Nationality Act 1981); or b. where registration or naturalisation of British nationality was obtained by fraud, false representation or concealment of a material fact (s40(3) and (6) 1981 Act) Process 2. There is a 3 stage process: a. Secretary of State decides to make a deprivation order; b. Secretary of States serves a notice that he has so decided; c. Secretary of State makes a deprivation order. 3. A deprivation order cannot be made until the individual has been served with a notice specifying that the Secretary of State has decided to make an order, the reasons for the order and the person’s right of appeal (s40(5) 1981 Act). 4. The notice is deemed to have been given to the individual: a. if sent by post from and to a place in UK on the 2 nd day after it is sent; b. if sent by post from or to a place outside UK on the 28 th day after it is sent; c. in any other case on the day on which the notice is delivered. If the person’s whereabouts are not known the notice should be sent by post addressed to him at his last known address. (Reg 10 British Nationality (General) Regulations 2003 (S.I. 2003/548)) 5. Where fraud, false representation or concealment of material fact is suspected a recommendation should be made to the Nationality Directorate who will then determine whether to investigate further. For full details of this process see Chapter 55 of the Nationality Instructions (‘Chapter 55’).

6. There is no common law obligation to seek representations from the individual before making the deprivation order: a. Counsel advised there was a ‘fairly slim’ chance of arguing successfully that representations must be sought after service of notice and before making deprivation order because by then the decision to deprive will have been taken and the individual will have been notified of his appeal rights. b. Counsel advised that the case for seeking representations before making a deprivation decision is stronger. But it could be properly argued that Parliament intended s40 of the 1981 Act (and the full right of appeal) to provide the entire scheme without any supplementation by the common law and therefore without any such obligation to seek representations. Even if there is such an obligation, Counsel advised it would be disapplied if the purpose of deprivation (and exclusion) is to prevent an individual returning to the UK to engage in immediate terrorist activity. (Jonathan Swift, con 4 February 2009, note with HOLAB) 7. A deprivation order can therefore be made as soon as the notice has been given to the individual (this is currently being challenged before SIAC in NM). 8. The Secretary of State currently takes deprivation decisions personally under both 40(2) and 40(3). However, he can delegate this power to an official of the Secretary of State. 9. Points to note: a. As a general rule, it is not an abuse of process to deprive a person of their nationality whilst they are outside the UK and to then exclude without delay. But there will be difficult cases and legal advice should be sought. b. Where deprivation is on fraud etc grounds the Secretary of State currently seeks information from the individual before making a decision to deprive. There is a risk that this will be seen to be seeking representations and therefore to undermine our argument that we don’t need to seek such representations in the national security context. c. Where deprivation is on fraud etc grounds as a matter of policy the order will not be made until any appeal has been determined. But where deprivation is on non-conducive grounds the order may be made immediately after the notice has been given and prior to any appeal being brought. d. The process for fraud etc deprivations which is set out in Chapter 55 does not apply to cases involving national security (terrorism and espionage), serious organised crime, war crimes and unacceptable behaviours. e. It is advisable to have proof that the notice has been served. f. There is no requirement to serve the actual deprivation order on the individual.

Appeal 10. An individual who has been served notice of the decision to make an order to deprive him of his British nationality has a full right of appeal: s40A(1) of the 1981 Act; Al Jedda v SSHD 7 April 2009 para 7. 11. The appeal lies to the AIT unless the Secretary of State certifies that the decision was taken wholly or partly in reliance on information which should not be made public in the interests of national security or diplomatic relations or otherwise in the public interest, in which case the appeal will lie to SIAC: s40A(2) of the 1981 Act; s2B SIAC Act 1997. 12. Article 6 ECHR does not apply to deprivation appeals: Al Jedda v SSHD 22 October 2008 (preliminary issue).

Discretion 13. There is no obligation on the Secretary of State to deprive where nationality is obtained by fraud etc or where it is considered conducive to the public good to pursue that deprivation and so it is for the Secretary of State to consider whether in all the circumstances deprivation should go ahead. 14. UKBA’s position is that where the citizenship was obtained by fraud etc the individual’s human rights will not be engaged by a decision to deprive because any rights enjoyed by the individual are rights that that person is not entitled to. This is not the case in conducive deprivations. 15. The guidance in Chapter 55 on fraud etc deprivations sets out circumstances in which deprivation will not normally be pursued. These factors must be taken into account when deciding whether the SoS should exercise his discretion not to deprive. Additional material    Note on citizenship served by SSHD in Al Jedda (sets out the effect of citizenship) Al-Jedda v SSHD 7 April 2009 (SIAC determination) Chapter 55 of the Nationality Instructions

September 2009

4_GUIDANCE NOTE: IMMIGRATION DETENTION
(i) Detention 1. When assessing whether detention is lawful the following questions should be addressed: i. ii. iii. iv. Is there a legal basis for the detention? Is the detention compatible with Article 5 ECHR? Is the detention in accordance with domestic case law? Is the detention in accordance with the published policy?

(ii) A legal basis for detention (a) Detention with a view to examining or pending removal 2. A person may be detained under the authority of an Immigration Officer: i. if they arrive at a port and are required to submit to examination (usually questioning) under paragraph 2 of Schedule 2 to the Immigration Act 1971 („the 1971 Act‟), pending that person‟s examination and pending any decision to give or refuse leave to enter [paragraph 16(1) of Schedule 2 to the 1971 Act]; ii. if their leave is suspended at port under paragraph 2A of the 1971 Act, pending completion of that person‟s examination and a decision whether to cancel that leave [paragraph 16(1A) of Schedule 2 to the 1971 Act]; iii. if required to submit to further examination (usually questioning) under paragraph 3A of Schedule 2 to the 1971 Act, for up to 12 hours pending completion of that examination [paragraph 16(1B) of the 1971 Act]; iv. where there are reasonable grounds to believe that they are a person in respect of whom removal directions may be given under paragraphs 8 – 10A or paragraphs 12 – 14 of Schedule 2 to the 1971 Act pending a decision to give such directions or pending removal in pursuance of such directions [paragraph 16(2)(a) and (b) of Schedule 2 to the 1971 Act is extended to administrative removals by s10(7) of the Immigration and Asylum Act 1999 („the 1999 Act‟)] 3. A person may be detained under the authority of the Secretary of State: i. pending a decision (by SoS) whether to give removal directions under paragraph 10, 10A or 14 of Schedule 2 to the 1971 Act and pending removal pursuant to those directions [section 62(1) of the Nationality, Immigration and Asylum Act 2002 („the 2002 Act‟)] ii. pending examination by and/or a decision as to whether to grant leave, to remove or to give removal directions by the SoS under section 3A of the 1971 Act [62(2) of the 2002 Act]

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(b) Detention pending deportation 4. A person may be detained under the authority of the Secretary of State: i. Where a court has recommended deportation, pending the making of a deportation order following that recommendation [paragraph 2(1) of Schedule 3 to the 1971 Act] ii. where notice of a decision to make a deportation order against them has been given, pending the making of a deportation order [paragraph 2(2) of Schedule 3 to the 1971 Act] iii. where a deportation order is in force against them, pending removal or departure from the United Kingdom [paragraph 2(3) of Schedule 3 to the 1971 Act] iv. where a person has served a period of imprisonment and the Secretary of State considers whether the person is eligible for automatic deportation and, if he is, pending the making of that deportation order [s36(1) UK Borders Act 2007] 5. Points to note:    The SoS must consider if detention is appropriate under paragraph 2(1) of Schedule 3 to the 1971 Act: Vovk & Datta [2006] EWHC 3386. A person can be detained under paragraph 2(2) of Schedule 3 to the 1971 Act once the Notice of Intention to deport is ready to be served – paragraph 2(4) of that Schedule. The SoS only has a power to detain under Schedule 3 whilst deciding whether to deport (“thinking time”) if there is a court recommendation. Such a recommendation is not required under s36 of the 2007 Act.

(iii) Article 5 ECHR 6. Article 5(1)(f) ECHR permits detention of a person against whom action is being taken with a view to deportation (this includes removal). Article 5(1)(f) requires detention to be for the purpose of deportation and for deportation to be progressing expeditiously (Chahal v UK 1996). There is no „necessity‟ requirement in article 5(1)(f) and so detention does not, for example, need to be necessary to prevent absconding to be lawful providing it is for one of the purposes authorised by article 5 and this is why the fast track system is lawful (Saadi v UK 2008). It is a requirement that the detention be determined by a procedure prescribed by law (to guarantee against arbitrariness). Article 5(2) requires that a person be informed promptly of the reasons for his detention. 7. Detention under paragraph 16(1B) of Schedule 2 to the 1971 Act (detention before embarking from the UK) does not fall within article 5(1)(f).

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(iv) Domestic case law 8. The leading case is Hardial Singh [1983] EWHC 1 (QB) which set out the following points:       The express power to detain under the Immigration Acts is subject to limitations. The person can only be detained for the purpose permitted under the particular power e.g. pending the making of a deportation order or removal. The power to detain is limited to a period which is reasonably necessary for that purpose. What is a reasonable period will depend on the all the circumstances. If it becomes apparent in the process that the purpose cannot be achieved within a reasonable period, detention will become unlawful. The SSHD must exercise all reasonable expedition to take steps to effect deportation/removal within a reasonable period of time.

9. Essentially, the court will ask itself whether the strategy or proposals being considered by HMG offer a realistic chance of achieving, within a reasonable period of time, a lawful removal. 10. Risk of offending on release may be pertinent in CCD cases but should not lead to an assumption of detention. The reasonableness of the detention must be fully assessed in light of all the circumstances of the case. Reviews 11. Regular detention reviews must be carried out in accordance with the Detention Centre Rules 2001 (made under the Immigration Act 1971). The Court of Appeal has accepted that the absence of those reviews does not itself render the detention unlawful (although this is being appealed to the House of Lords). That is because paragraph 2 of Schedule 3 to the Immigration Act 1971 does not specify that compliance with the rules/guidance is a condition precedent to lawful detention. However, a breach of the rules or Manual could attract other remedies in public law, such as a declaration of non-compliance by the SSHD - SK (Zimbabwe) v SSHD [2008] EWCA Civ 1204. (v) The published policy 12.This can be found at chapter 55 of the Enforcement Instructions and Guidance. In particular note that this says that detention should be used sparingly and for the shortest possible period. Reference should be made to 55.3.1. „Factors influencing a decision to detain‟. The policy can be found at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enforcement/d etentionandremovals/ Detention for reasons which are contrary to published policy will be unlawful - Nadarajah & Amirthanathan v SSHD [2003] EWCA Civ 1768.

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(vi) Children / families 13. There are a number of additional domestic and international safeguards which must be met when deciding to detain a family with children.  Domestically a new statutory duty is expected to come into force in October 2009 which requires SoS and the Director of Border Revenue to make arrangements to ensure that officials have regard to the need to safeguard and promote the welfare of children in the UK when carrying out the department‟s functions. The duty also requires that individuals exercising those functions have regard to guidance given as part of those arrangements. Internationally there is the United Nations Convention on the Rights of the Child 1989 („the convention‟). This is not directly binding but can and has been relied upon to interpret ECHR rights and ambiguous legislation. Article 3 and 37 are particularly relevant to detention. The court has previously found that there is no material difference between Article 37(b) and UKBA‟s policy to detain only where all reasonable alternatives are discounted and the detention is for the shortest period possible S,C,D v SSHD 2007 EWHC 1654 (Admin). The convention can be found at: http://www.un.org/documents/instruments/docs_en.asp 14. It is not clear how the court will interpret the new duty. Case law on the convention has indicated that despite a child‟s interests being a primary consideration it cannot preclude detention in all circumstances- S,C,D v SSHD 2007 EWHC 1654 (Admin). It is hoped but not certain that the courts will take a similar stance in relation to the duty. 15. Before the position is settled UKBA are advised that when deciding whether to detain children the relevant sections of Chapter 55 and Chapter 45 should be carefully followed and the reasoning behind the decision carefully recorded. (vii) Tort of false imprisonment 16. Where a claim if brought for the tort of false imprisonment the claimant must prove imprisonment and then the defendant must prove justification: Youssef v Home Office [2004] EWHC 1884 (QB).

4

(viii) Miscellaneous  The PACE Codes of Practice do not apply to immigration detention except for minimum standards of treatment in custody: PACE Code C; s145 of the 1999 Act and the Immigration (PACE Codes of Practice) Direction 2000 Where a person is liable to detention under paragraph 16(1) or (2) of Schedule 2 to, or paragraph 2(1) to (3) of Schedule 3 to, the 1971 Act he can instead be subject to residence, employment or occupation restrictions or subject to a requirement to report to the police or an IO – paragraph 21 of Schedule 2 to, and paragraph 2(5) and (6) of Schedule 3 to, the 1971 Act. Electronic monitoring can be imposed on an adult who is subject to a residence requirement or who could instead be subject to a reporting restriction: s36 of the 2004 Act. Electronic monitoring can also be a requirement of bail and it may or may not be a condition of the recognizance or bail bond A person in immigration detention can apply for bail to the AIT or a chief immigration. Those detained under paragraph 16 of Schedule 2 to the 1971 Act can be released under: o paras 22 to 25 (no appeal pending, no removal directions, surrender to IO) o paras 29-33 (appeal pending and surrender to AIT) o para 34 (no appeal pending and removal directions in force) A person detained under paragraph 16(1) (pending examination) cannot be released on bail until 7 days has elapsed since their arrival in UK. Where a CIO has the sole or shared power to release a person on bail under Sch 2 to the 1971 Act or application for bail is instituted after 8 days from the date of detention an IO can only authorise bail if he is acting on behalf of the SoS [section 68 of 1999 Act].

 

September 2009

5

5_Disclosure of Documents
1. This note is an overview of disclosure in civil court proceedings, including judicial review, SIAC cases and civil claims for damages. The note does not cover criminal cases, to which a separate regime applies, or disclosure under the data protection or freedom of information acts. Summary

Disclosure only arises if the material is relevant to the litigation. Relevance is a legal test normally to be assessed by TSol litigators and counsel arguing the case. This assessment should be made as early as possible. Material which comes to light late may be more difficult to protect (eg by the way the case is argued) and if the court thought that material had been held back intentionally the consequences would be serious. If relevant, the material will need to be disclosed to the court. The courts are concerned to protect national security and the safety of individuals and counsel can ask for material to be withheld from other parties through the use of public interest immunity or special handling restrictions. But the decision is one for the court. If the court is not persuaded that material should be protected, it may be possible to abandon or settle the proceedings (at a cost) but this cannot be guaranteed.

Introduction 1. The following categories of documents may be considered relevant in civil disclosure: 2. Parties own documents - those which a party relies upon in support of his case; 3. Adverse documents - those which adversely affect a party's own case or support another party's case; 4. Relevant documents - although not obviously supportive of or undermining to anyone's case those which are relevant to the issues because they are part of the 'story' or background; 5. Train of inquiry documents - which may lead to a train of inquiry enabling a party to advance his own case or damage that of his opponent. 6. "Documents" in this context means anything in which information of any description is recorded, including paper, computer records and databases and correspondence (including email and manuscript annotations on documents). The obligations of disclosure continue throughout the proceedings and each party must continually review whether they have further relevant documents which should be disclosed. Once a department is on notice of a case which may require disclosure of departmental documents, nothing that may be potentially relevant should be destroyed or disposed of. If documents are destroyed in accordance with usual procedures before the department has been put on notice, it may be necessary to give an explanation to the court.

7. There is potential for interaction between the different types of claim since the same facts may be litigated in more than one of the types of legal proceeding described below. If for example an individual detained pending deportation successfully challenges the decision to deport, or the Home Secretary decides to discontinue the deportation, the individual may well make a false imprisonment claim. Even if the initial challenge was by way of judicial review, requiring relatively little documentary disclosure, a false imprisonment claim will require the disclosure of all relevant documents. It will subject the whole decision making process to scrutiny, including the basis upon which the original detention took place. Disclosure in judicial review proceedings 1. Judicial review is the principal means by which government decision-making is challenged in the courts. The court examines whether the decision of the secretary of state was lawful, procedurally fair and reasonable. It does not attempt to substitute its own view on the merits of a decision. Example: If a secretary of state is challenged on his exercise of a statutory power the challenge will be in the form of a judicial review. In defending the challenge, the secretary of state would need to explain the basis upon which he exercised the power. Any statement made on the secretary of state's behalf will need to be consistent with the underlying information and may have to exhibit it. 1. Disclosure of documents in judicial review proceedings is only required if the court so orders. This happens rarely because judicial review essentially turns on questions of law. Furthermore, all parties are under a duty of candour to provide the court with enough information for justice to be done and the nature of the issues before the court usually means that this duty can ordinarily be met by presenting evidence to the court by way of witness statements (which may need to exhibit documents). 2. The duty of candour requires the parties to present the full story to the court including anything which may undermine their case or assist another party's case. It applies to all stages of the proceedings correspondence between the parties, grounds of resistance, witness statements and counsels written and oral submissions. These documents must all accurately reflect the underlying material. It is therefore important for the litigation solicitors and counsel to be aware of all potentially relevant underlying material as soon as possible. It may be possible to argue the case in such a way as to minimise the exposure of sensitive detail. If documents come to light late in the proceedings it may require a change of tack in the case. If a court suspects that a party has not been fully candid, it may make an order for specific disclosure which will require the production of documents.

Disclosure in the special immigration appeals court (SIAC) 1. SIAC is a specially established court to hear: 2. Appeals against immigration decisions to remove a person on the grounds of national security or in the interests of the relationship between the UK and another country; 3. Appeals against immigration decisions that were taken wholly or partly in reliance on information which the secretary of state considers should not be made public in the interests of national security, the relationship between the UK and another country or otherwise in the public interest (this may include matters other than national security or international relations, for example sensitive police information). 4. Unlike judicial review SIAC can substitute its view of the merits for those of the secretary of state. 5. The procedures in SIAC have been established to protect the interests of national security and other significant public interests whilst ensuring that the court has sufficient material before it to determine the issues justly. Subject only to the special handling procedures of SIAC, the tests for disclosure in SIAC are the same as in the sort of civil proceedings described in paragraphs 11 - 13 below. 6. The role of the special advocate in SIAC is key to dealing with the situation where sensitive information is relevant to the decision being appealed and the secretary of state objects to its disclosure to the appellant and their legal representatives. The special advocate is able to see the sensitive information ('closed' material) but is under a duty not to disclose it to the appellant or their legal representatives. The special advocate makes representations to the court as to the extent to which sensitive material should remain 'closed' and also on the merits of the case which relies on the closed evidence. Disclosure in civil proceedings other than judicial review 1. Civil actions other than judicial review are mainly claims for damages arising from an alleged breach of a duty such as a contractual obligation or a duty of care. Perhaps the most common type of civil claim is a claim for personal injury caused by negligence but claims can also be made for eg false imprisonment. Example: If a person is detained pending a deportation decision they may make a false imprisonment claim against the secretary of state. If they are not, in the end, deported they may claim that they have been detained unlawfully or for longer than necessary. Given the sorts of considerations the secretary of state will have to take into account in such cases, and the likelihood that he will need to discuss with ministerial colleagues, material relevant to the proceedings may be wide ranging. Ministerial correspondence may be directly relevant to whether the individual should have been released sooner. This may require more than one department to disclose its documents. It is also highly likely to involve an assessment of the human rights record of a third country and whether the individual poses a threat to the UK.

1. The court in such cases conducts a full investigation of the facts in order to determine whether the claimant's incarceration (and its duration) was lawful. As a result the obligations to disclose documents are more onerous than in judicial review. 2. By reference to the categories of relevance described in paragraph 2 above, the basic level of disclosure in civil proceedings and SIAC is called 'standard disclosure' and requires disclosure of parties own and adverse documents. The court can order 'specific disclosure' of relevant and train of inquiry documents upon the application of one of the parties or if it seems to the court that they should be disclosed in order to ensure the fairness of the proceedings. The assessment of relevance needs to be carried out by someone who understands the issues in the case ? this is likely to be the government litigator and counsel in the case. In the first instance departments should seek the advice of their own legal advisers. Exemptions from disclosure 1. Documents can be withheld from disclosure in any sort of legal proceeding, even if they are relevant, on two grounds: legal professional privilege and public interest immunity. Both are complex and changing areas and are only described in outline in this paper. Legal advice will need to be taken in specific cases. 2. Legal professional privilege (LPP) aims to protect the confidential relationship between a client and his lawyer. LPP applies to advice a department receives from government legal advisers (eg departmental legal advisers and Tsol) and independent counsel. Where legally privileged documents are being withheld from disclosure in civil proceedings this is made clear in the list of documents given to the other party. 3. Public interest immunity (PII) requires an application to the court and it is ultimately for the court to decide whether the interests of justice require the disclosure of documents we are seeking to withhold. The court balances the public interest in full disclosure against the public interest in maintaining confidentiality where disclosure would cause real harm to a competing public interest (for example national security). This balance needs to be struck case by case and much will turn on the degree of relevance of the documents in question to the particular issues in the case. Where these involve an individual's liberty, in criminal cases or false imprisonment claims, the court will attach very great weight to the need for full disclosure. 4. An application by a government department to withhold documents on PII grounds needs to be supported by a ministerial certificate explaining the real harm that will be caused to the public interest if the material is disclosed. Prior to signing such a certificate the minister will require detailed advice from counsel on the degree of relevance of the material in the documents. Equally he will need a detailed assessment of the harm that would be caused by disclosure so that he can form his own view of the balance before representations are put to the court. This exercise requires line by line consideration of the documents, it is not possible to take a class approach to a category of documents. The assessment needs to be on the substance of the information contained in them.

Special procedures 1. In cases where PII is not available because the degree of relevance of the sensitive material to the case is so high that PII cannot be sustained it may be possible to apply to the court for special procedures to apply to certain aspects of he case. This may include in camera hearings, restricted disclosure of material within a 'ring of confidence' or the ad hoc appointment of a special advocate similar to the SIAC procedure. Such decisions are in the discretion of the court. 2. In the context of the SIAC proceedings PII is unlikely to be relevant because the procedures are designed to protect material whose disclosure would damage national security or the relationship between the UK and another country and therefore replaces the need for PII. 3rd March 2006

6_Guidance Note: Exclusions
Powers to exclude 1 The Secretary of State has a power to exclude a foreign national from the UK where it is conducive to the public good to do so:     At present a person must be outside the UK when they are excluded. (This may be open to argument and LAB advice should be sought in this context.) This power is either a common law or prerogative power (SIAC has suggested it is a prerogative power: EV v SSHD 2009 para 5). An exclusion decision is not an immigration decision (within the meaning of s82 NIA 2002) and there is no statutory right of appeal in respect of it. An exclusion decision can be judicially reviewed. An exclusion decision can have effect indefinitely (subject to review) or can take the form of refusal of leave to enter or entry clearance on a particular occasion.

Effect of exclusion decision 2 Where the Secretary of State takes an exclusion decision personally an immigration officer is required to refuse entry clearance or leave to enter: para 320(6) of the Immigration Rules. 3 If the person has leave when excluded that leave will be cancelled: para 321A(4) of the Immigration Rules. Leave to enter is cancelled by an immigration officer and leave to remain is cancelled by the Secretary of State; article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000. (This cancels any leave enjoyed by virtue of an existing entry clearance – see article 13(1).) 4 Refusal or cancellation of leave/entry clearance is an immigration decision which attracts a statutory right of appeal. Other powers to refuse or cancel entry 5 Immigration officers have other powers to prevent persons from entering the UK. particular, they have a discretion:   In

to refuse entry clearance or leave to enter on the ground that exclusion form the UK is conducive to the public good: para 320(19) of the Immigration Rules; to cancel leave to enter or remain on the ground that exclusion from the UK is conducive to the public good: para 321A(5) of the Immigration Rules

6 This guidance note focuses on cases in which the Secretary of State personally directs that exclusion of a non-EEA national (or rather anyone outside the protection of the Community Treaties) is conducive to the public good. It does not address cases in which the IO/ECO exercises his discretion to prevent entry.

The test - is exclusion conducive to the public good? 7 This is an assessment, in the round, of whether the particular action would serve the public interest. The courts traditionally have afforded the executive a wide margin in reaching this assessment, particularly where the grounds for taking action fall within the remit of the Home Secretary’s wider responsibilities (e.g. national security, crime, public order). The following categories are grounds on which HMG has a published policy of excluding persons:      8 National security Serious organised crime “Unacceptable behaviour” Involvement in large-scale corruption in priority countries Membership of an organisation proscribed under s3 of the Terrorism Act 2000 Exclusion could be justified on other grounds subject to human rights considerations.

Reaching a judgement 9 Generally speaking, and subject to any published guidance and criteria, such as that which exists in respect of “unacceptable behaviour” (see below), the Home Secretary conducts an assessment “in the round” as to whether or not the individual’s exclusion is conducive to the public good. This is a question of risk and judgment and he needn’t be convinced of any particular conduct or state of affairs on the balance of probabilities: SSHD v Rehman [2001] UKHL 47 (deportation case). 10 Our guidance makes clear that there should always be evidence of direct involvement in the relevant activity from a reliable and credible source before using this as the basis of an exclusion. Furthermore, in order to convince the court that the Home Secretary has acted reasonably in all the circumstances, the extent of his reliance on others in reaching an assessment of conduciveness should broadly accord with their level of expertise. 11 The exclusion direction has to be made personally by the Secretary of State if it is to have the effect set out above. However, the Immigration Rules could be redrafted to provide that an exclusion decision might be taken by an official of the Secretary of State if we considered the power to be capable of delegation to such a level under the Calrtona principle. Judicial Review 12 As a matter of public law the Secretary of State needs to exercise that overall judgement reasonably and on the basis of all the information available or that which is reasonably available. His judgement is amenable to judicial review on the usual public law principles, including –  Rationality (e.g. acting on the basis on some factual matrix that is reasonable in all the circumstances)  Acting in accordance with fair procedure  Complying with any human rights engaged  Not undermining any legitimate expectation. Appeals 13 An immigration decision which accompanies an exclusion decision gives rise to a statutory right of appeal: s82 NIA 2002. The grounds of appeal are contained in s84 of the 2002 Act.

14 The grounds of appeal can be restricted in respect of a decision to refuse leave to enter or entry clearance if the Secretary of State certifies that the immigration decision was taken personally by the Secretary of State or in accordance with a personal direction of the Secretary of State on the ground that exclusion or removal from the UK is conducive to the public good: s98 of the 2002 Act. In such cases an appeal can only be brought on grounds of racial discrimination, human rights or, in the case of refusal of leave to enter giving rise to removal, the Refugee Convention. Therefore, where it has jurisdiction in these matters, the AIT can overturn immigration decisions notwithstanding that the Immigration Officer was compelled to exclude under the Immigration Rules and in accordance with the Home Secretary’s direction. 15 In such an appeal the AIT could consider the proportionality of the the exclusion decision (SIAC took such an approach in EV v SSHD 2009) . In doing so it is likely to examine the evidence on which the Secretary of State took the decision and (except in the case of refusal of entry clearance) may even have regard to fresh evidence: s85(4) and(5) and s85A(2) of the 2002 Act). In other words, the fact that the Home Secretary’s direction was reasonable and would stand up to judicial review might not prevent the AIT from substituting its own findings of fact and assessment of the merits. Therefore, in directed exclusions, where possible, it is helpful for us to be able to point to at least one “precedent fact” or circumstance that can be established on the balance of probabilities even if regard is also had to other matters “in the round”. This would assist our position both in appeals and JRs. Unacceptable behaviour 16 The following non-exhaustive definition of unacceptable behaviour has been published as a category of exclusion to target extremism. The expectation is that just one example of such behaviour would justify the imposition of an exclusion direction. “A non-British citizen, whether in the UK or abroad, who uses any means or medium including:  Writing, producing, publishing or distributing material;  Public speaking including preaching;  Running a website; or  Using a position of responsibility such as a teacher, community or youth leader To express views which:  Foment, justify or glorify terrorist violence in furtherance of particular beliefs;  Seek to provoke others to terrorist acts;  Foment other serious criminal activity or seek to provoke others to serious criminal acts; or  Foster hatred which might lead to inter-community violence in the UK.” 17 The Home Secretary will still have to weigh things up in applying the criteria to particular individuals and circumstances. Exceptions may also need to be considered and the wider public interest accounted for. For example, the guidance stipulates that exclusion should not be considered if the individual has publicly and genuinely retracted earlier views which fell foul of the criteria or if reaction to the exclusion would threaten public safety in the UK or significant British interests overseas.

Human Rights 18 The starting point is that our obligations under the ECHR apply only in respect of persons within our jurisdiction. Therefore exclusion (and immigration) decisions taken when the individual is outside our jurisdiction would not automatically engage the ECHR. However:   where a person has an established family life with people in the UK an exclusion direction might engage the rights of those family members within jurisdiction and fall to be justified under article 8(2). the ECHR might be engaged when the purpose of an exclusion is to prevent the very exercise of a human right: eg Farrakhan v SSHD [2002] EWCA Civ 606 where the individual was excluded in order to prevent him from exercising his freedom of expression. (NB freedom of expression includes a right to receive information so a third party could arguably bring a judicial review on such grounds.)

19 Once qualified human rights are engaged the interference of exclusion will fall to be justified in accordance with legitimate aims and proportionality. The established categories of exclusions already accord closely with the legitimate aims: national security, public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. Interference with the right must always be proportionate Fairness and consistency 20 Directions must accord with any published policy, must be based on reliable evidence and must be made in a consistent manner. (NB consistency is a real concern given that the class of people who could potentially be considered for exclusion extends across the entire world and we rely on persons coming to our attention to exclude.) 21 Once a precedent is set we may be under pressure to apply it to others in the same category that we know about or should know about even if they are not intending to come to the UK. The use of the warning index might be considered as a workable alternative. Notification 22 There is no statutory obligation to notify individuals of, and provide reasons for, an exclusion decision (the Immigration (Notices) Regulations 2003 apply to immigration decisions but not exclusion decisions). However, as a general rule notification should be given unless there is good reason not to. 23     Guidance provides that the individual will be notified of his exclusion except where it may: Breach a person’s confidentiality (e.g. he is currently in prison and his mail is liable to be screened); Compromise ongoing intelligence or operational activities; Severely damage UK diplomatic relations; Significantly increase the risk to British personnel or interests overseas.”

24 In any challenge to a failure to notify we would seek to establish what, if any, detriment had been suffered by the individual. (NB if the exclusion decision is to be published it may be advisable to notify the individual in advance of the decision.)

Publication 25 Traditionally, exclusions have not been publicised: some of the material and issues are sensitive; it could be harmful to publicly state that exclusion is conducive to the public good when the direction may be overturned or revised; matters may be sub judice if they are being challenged in the courts. But there may be exceptions: for example, if an individual publicly criticises an exclusion direction. 26 However, in the context of unacceptable behaviour exclusions, in October 2008 the then Home Secretary announced that she would consider in all future cases whether it would be in the public interest to disclose that an individual had been excluded and with a presumption that the public should be informed. The following factors are to be considered:      Whether there is a clear legitimate purpose connected with the Home Secretary’s functions for disclosure (public order, national security, community relations)[or any legal barriers to prevent disclosure]; Whether disclosure would place the individual or others at risk; Whether there are operational reasons which make it undesirable for the excluded individual to be notified that he had been excluded; Whether disclosure would cause harm to significant British interests, either in the UK or overseas; or Whether the reaction in the UK or overseas would significantly damage the credibility or efficacy of any strand of CONTEST

27 Essentially, the justification is that Data Protection Act 1998, ECHR and confidentiality concerns may be, on a case by case basis, overridden by the public interest in disclosure for the purposes of:    Reassuring the public of the effectiveness of our controls; Improving community relations; and Deterring others who might wish to engage in such behaviour.

28 A consistent approach will need to be taken to notification and publication of UB exclusion directions. We will need to justify why we have withheld notification yet published the direction. Allowing representations before publication will mitigate the risks of legal challenge to publication. “Breach” of an exclusion 29 Unlike a deportation order which cancels leave to enter or remain, an exclusion direction requires further action to give it effect (cancellation or refusal of leave). If Immigration Officers fail to refuse or cancel leave to enter and the individual does indeed enter then he is not committing an offence or breaching any order. He would only be breaching the immigration laws by illegally entering when Immigration Officers have actually refused or cancelled his leave.

Review and revocation 30 Practice suggests that exclusion directions last up to 10 years although current policy is to review directions to exclude every 3 years. Where fresh material comes to light it would be good practice to review the direction and the underlying assessment of conduciveness. This will protect against legal challenges and help demonstrate the proportionality of the overall scheme. 31 On reviewing a direction it would be for the Home Secretary personally to revoke any exclusion direction just as he personally makes them. Arguably, it would then be irrational or abusive for an Immigration Officer to have regard to the underlying material in exercising his discretionary powers to refuse entry, absent any new information available to him. Alternatives 32 If the intention is merely to prevent attendance of an individual at a particular event or to exclude because of prevailing and transient circumstances (i.e. community tensions), it might be more proportionate for Immigration Officers simply to refuse entry on that particular occasion using their own discretionary powers. In such circumstances the Home Secretary is free to share information with Immigration Officers to assist their decision making but the ultimate decision as to conduciveness should be left to the officers. This approach would not prevent the individual from attempting to enter the UK subsequently. 33 Placing an individual on the Warnings Index is another proportionate alternative in some cases. Guidance provides that it should be considered when the following requirements are met:        The person is a visa national requiring entry clearance before travelling to the UK; The person does not already hold a valid UK entry clearance; The person does not already have valid leave to enter or remain in the UK; The person is not a high profile or high harm case; There is no expectation that the person will travel to the UK in the short term; There is no overriding operational reason for immediate exclusion; and There is no overriding public interest reason for immediate exclusion.

September 2009

8_GUIDANCE NOTE: REMOVALS
(i) Overview

1. The removal process:  The Secretary of State may, if he has a power to do so, decide to remove a nonnational.  This is an immigration decision (within the meaning of s82 Nationality, Immigration and Asylum Act 2002 (the 2002 Act)) and attracts a right of appeal.  If the appeal is unsuccessful, the Secretary of State may serve removal directions (RDs).  The individual can challenge RDs by bringing a JR which will normally defer removal (see para 22, ii.).  The individual may also make further representations which the Secretary of State must consider with a view to determining if they amount to a fresh claim before removal can take place (see para 22, iii.). 2. (ii) Removal is distinct from deportation which is carried out for the public good. The power to remove

3. The Secretary of State has the power to remove:  those refused leave to enter and illegal entrants (‗port removals‘);  those who are in the UK unlawfully (‗Admin removals‘);  those whose statutorily extended leave has come to an end following an appeal. 4. Port removals: A person can be removed if: (i) (ii) (iii) they are refused leave to enter [paragraphs 8 and 10 of Schedule 2 to the Immigration Act 1971 (‗the 1971 Act‘)]; they are an illegal entrant [paragraph 9 of Schedule 2 to the 1971 Act]; directions have been given under paragraphs 8 to 10 of Schedule 2 to the 1971 Act in respect of a member of their family [paragraph 10A of Schedule 2 to the 1971 Act]

For this purpose, an ―illegal entrant‖ is a person (a) unlawfully entering, seeking to enter, or having entered in breach of a deportation order or the immigration laws or (b) entering, seeking to enter, or having entered by means which include deception by another person [section 33(1) of the 1971 Act]. 5. There are also specific powers to remove seamen and aircrews in paragraphs 12 to 14 of Schedule 2 to the 1971 Act.

Admin removals 6. A person can also be removed if: (iv) they have failed to abide by a condition of their leave or have overstayed their leave [section 10(1)a) of the Immigration and Asylum Act 1999 (‗the 1999 Act‘)]; they have used deception (successfully or not) in seeking leave to remain [section 10(1)b) of the 1999 Act]; their ILR is revoked under s 76(3) of the 2002 Act (person ceasing to be a refugee) [section 10(1)ba) of the 1999 Act]; directions have been given under section 10 of the 1999 Act for the removal of a member of their family (NB written notice of intention to remove must be given before directions can be served [section 10(1)(c) and (3) 1999 Act].

(v)

(vi)

(vii)

NOTE: when a person is notified that a decision has been taken to remove him under s10 of the 1999 Act any leave previously given to him is invalidated – s10(8) 1999 Act. Removal of those whose statutorily extended leave has come to an end 7. Finally: (viii) a person can be removed if his leave, which was extended by section 3C(2)b) or 3D(2)a) of the 1971 Act, ends [section 47 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act)]

(iii) Barriers to removal 8. The following are barriers to removal:  A removal cannot take place if it would breach the individual‘s human rights. Article 8 ECHR (family and private life) and Article 3 ECHR (ill-treatment) are the most common barriers to removal. Article 6 (right to a fair trial) is often raised by removees if they have outstanding judicial reviews or civil claims in the UK, caseworkers should consider Chapter 21 of the EIG when considering claims raising Article 6.  A removal cannot take place if contrary to the Refugee Convention.  All relevant factors known to the Secretary of State must be taken into account before deciding to administratively remove an individual under s10 of the 1999 Act (para 395C of the Immigration Rules, which lists a number of relevant factors that should be taken into account). 9. Also note paragraph 20 below on deferring removal.

(iv) Removal directions 10. Removal directions (‗RDs‘) are set once the decision to remove has been taken. An appeal against the decision to remove does not prevent RDs being given but a person cannot be removed if their appeal right is in country by virtue of section 92 of the 2002 Act [Section 78 of the 2002 Act]. 11. In port removals, RDs can be given to the owner or agents of a ship or aircraft that has brought the individual to the UK as follows (paras 8 and 9 of Schedule 2 to the 1971 Act): (a) to remove from the UK in any ship or aircraft they own; (b) to remove to a country of which he is a national or citizen; (c) to remove to a country or territory in which he has obtained a passport or other identity document; (d) to remove to a country or territory in which he embarked for the UK; or (e) to remove to a country or territory to which there is reason to believe he would be admitted; And RDs can also be given to the captain of the ship or aircraft on which the individual arrived to remove him in that ship or aircraft. 12. If RDs under para 8 or 9 are thought likely to be ineffective, impracticable or out of time the Secretary of State can give any direction to the owner or agent of a ship or aircraft that could be given under para 8(1)(c) Sched 2 1971 Act – see para 10 Sched 2 1971 Act. RDs which require removal by another airline are not ineffective or impractical and the booking and the cost of the ticket should not fall to the Secretary of State. 13. Points to note:  Timing: RDs under para 8 Sched 2 1971 Act must be made within 2 months of any decision to refuse LTE (ignoring the period during which any appeal is brought) unless the owner or agent of the ship or aircraft has been notified in that period that RDs will be served on him (para 8(2) Schedule 2 1971 Act).  Costs: the owner of agent of the ship or aircraft covers the cost of removal under paras 8 and 9 Sched 2 1971 Act. The Secretary of State covers the cost of removal under para 10 Sched 2 1971 Act. 14. In admin removals, RDs are made under s10 of the 1999 Act. The Secretary of State covers the cost of removal (see s10(9) 1999 Act). Directions may be given in accordance with the Immigration (Removal Directions) Regulations 2000 (S.I. 2000/2243) to: a) owners of ships; b) owners of aircraft; c) agents of ships; d) agents of aircraft; e) captains of ships about to leave the United Kingdom; f) captains of aircraft about to leave the United Kingdom; and g) persons operating an international service.

15. The direction may require that: a) a captain of a ship or aircraft about to leave the United Kingdom remove the relevant person in that ship or aircraft; b) a person operating an international service make arrangements for the removal of the relevant person through the tunnel system (only if the person has arrived thorough the tunnel system); c) any other person who falls within (a) to (d) of paragraph 14 make arrangements for the removal of the relevant person in a ship or aircraft specified or indicated in the directions; d) any person listed in paragraph 14 remove the relevant person in accordance with arrangements to be made by an immigration officer. 16. The directions must specify that the relevant person is to be removed to a country or territory being— (a) a country of which he is a national or citizen; or (b) a country or territory to which there is reason to believe that he will be admitted. Notice period 17. Under agreement with the courts the individual must be given 72 hours notice of removal (which must include 2 working days). For assistance in calculating the latest point at which RDs can be served see para 60.4 of Chapter 60 EIG. 18. There are certain exceptions to this rule:    procedures differ for third country cases and charter flights- see Chapter 60 EIG; medically documented cases of risk of suicide or self harm – para 60.6 of Chapter 60 EIG; third county cases where UKBA are dealing with an unaccompanied minor in liaison with Social Services – para 60.6 of Chapter 60 EIG.

19. Points to note:  The exception regarding risk of suicide or self-harm is there to protect the interests of the removee and should only be applied where there are genuine concerns about their safety. The exception should be applied where the detainee (or a member of his/her family who is also detained) is subject to an open Assessment, Care in Detention and Teamwork (ACDT) procedure and is considered by healthcare to be at risk of either potential suicide or other self-harm if given notice of removal. NOTE: (a) the assessment must be by a healthcare professional (b) the risk must be associated with the serving of RDs (c) it must not be possible to manage the risk effectively by another means (d) UKBA should still give as much notice as possible whilst safeguarding the risk to the individual.  Legal risk can be minimised by ensuring that RDs are served during working hours so the individual can access his legal team and the courts. If this is impossible keeping an accurate record of what other options have been considered and why these could not be achieved will assist if later challenged, for example if there is a flight leaving on Sunday and one on Tuesday UKBA should consider using the Tuesday flight if to do so would allow the removee access to his legal team.  Failure to give appropriate notice will render the removal unlawful. Reliance on any exception or practice concerning notice which does not appear in published guidance will render the removal unlawful (N v SSHD [2009] EWHC 873 (Admin)).

(v) Right of appeal 20. The decision to remove an individual is an immigration decision and attracts a right of appeal: see s82(1) and (2)(g) – (ia) of the 2002 Act. The right of appeal is not in country unless: i. the appellant has made an asylum or human rights claim; or ii. is an EEA national and claims there is a breach of their rights of residence or entry under the Community treaties; or iii. the decision to remove was taken under section 47 of the Immigration and Asylum Act 2006. see s92 of the 2002 Act 21. RDs are not an immigration decision and there is no statutory right of appeal against them. They can only be challenged by way or judicial review. (vi) When must removal be deferred 22. Chapter 60 EIG should be consulted. Key points to note are: Removal must always be deferred if a court injunction preventing removal is in place – if the individual has signed a disclaimer agreeing to removal the court which issued the injunction should be contacted to have it discharged before removing; ii. If a JR against removal directions or the removal decision is brought this will ordinarily lead to removal being suspended. However, if the individual became appeal rights exhausted or lost a JR less than 3 months before the JR in question, UKBA may decide not to suspend removal if the new claim raises: a. the same or virtually identical grounds as material previously considered; or b. material that could reasonably have been raised at the previous hearing. iii. If further representations are made removal cannot take place until UKBA have considered those representations and, if rejected, have considered whether these amount to a fresh claim i.e. they are significantly different to the material previously considered. They will only be significantly different if: a. the content has not already been considered; and b. taken together with previously considered material, there is a realistic prospect of success (notwithstanding their rejection). (see para 353 Immigration Rules (fresh claims)) iv. Other legal proceedings (whether against the Home Office, another or the removee) may require removal to be deferred. Removal should be deferred if Article 6 – right to a fair trial – would otherwise be breached (see paras 21.3 – 21.14 of Chapter 21 EIG): i.

September 2009

9-A_Special Immigration Appeals Commission (SIAC) guidance notes

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9-B_Guidance note 1: Overview of deportation cases before SIAC 9-D_Guidance note 3: Who has an immigration appeal and how it is brought before SIAC 9-E_Guidance note 4: Detention and bail 9-F_Guidance note 5: Legal test for non-conducive to the public good: deportation, exclusion and deprivation 9-G_Guidance note 6: Safety on return in deportation cases 9-H_Guidance note 7: Deprivation of nationality 9-I_Guidance note 8: Refugee law issues 9-K_Guidance note 10: Fair hearing: ECHR considerations 9-L_Guidance note 11: Information sharing with receiving States

There are 13 SIAC guidance notes in total. Those which do not appear on this page are classified and you should contact the relevant UK Border Agency team if you wish to access them.

9-B_SIAC Guidance Note 1: An Overview of Deportation Cases before SIAC
Introduction A foreign national or stateless person who is present in the UK is liable to deportation if his deportation would be conducive to the public good (section 3(5)(a) of the Immigration Act 1971).1 If the SSHD wishes to deport an individual he will issue a notice of intention to deport. The individual can be detained once such a notice has been served or the notice is ready to be served (para 2 of Schedule 3 to the Immigration Act 1971). A person facing deportation has a right of appeal against a decision to make a deportation order (section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002) (that decision is enshrined in the notice of intention to deport). Normally, that appeal would be heard by the Asylum and Immigration Tribunal (AIT). However, where the immigration decision is certified by the Secretary of State under section 97 of the Nationality, Immigration and Asylum Act 2002 for reasons for national security then the appeal will be dealt with by the Special Immigration Appeals Commission (SIAC) (section 2(1) of the SIAC Act 1997 (as amended)). Appeals from a final determination of SIAC are to the Court of Appeal and the House of Lords and are confined to points of law.2 The person who is detained pending deportation may apply for bail. If the person is being deported on national security grounds or the detention has been certified as necessary in the interests of national security SIAC has jurisdiction to grant bail (section 3 of the SIAC Act 1997). In doing so, SIAC will impose conditions which are designed to meet the national security threat posed by the individual. SIAC SIAC was created specifically to deal fairly and effectively with immigration appeals where intelligence is part of evidence. It was established by the Special Immigration Appeals Commission Act 1997 following criticisms by the European Court of Human Rights (in its judgment in Chahal v the UK 70/1995/576/662) of the UK’s previous arrangements for challenging national security deportation decisions. (In paragraph 144 of that judgment, there is a reference to descriptions in the submissions by Amnesty International and others to a procedure under the Canadian Immigration Act 1976 which allowed evidence to be examined in the absence of the appellant and his or her chosen representative. This was the basis for the Special Advocate procedure which is at the heart of SIAC.) Since December 2001, SIAC has been a superior court of record. Composition A SIAC panel will be made up of three people; at least one of these will hold (or will have held) high judicial office (a High Court Judge), and at least one will be (or will have been) a legally qualified member of the Asylum and Immigration Tribunal (para 5 of Schedule 1 to the SIAC Act 1997). The third will normally be a person who has experience of national security matters and be familiar with the kind of evidence that is likely to be presented in such cases.
The automatic deportation provisions in section 3(6) of the 1971 Act and sections 32 and 33 of the UK Borders Act 2007 identify cases involving the commission of criminal offences in which deportation is deemed to be conducive the public good and a deportation order must be made. To date no such case has been heard by SIAC but it is likely such a case will be heard in 2009/10. 2 SIAC can sit anywhere in the UK. An appeal from a SIAC determination made in Scotland will be to the Court of Session and an appeal from a SIAC determination made in Northern Ireland will be to the Court of Appeal in Northern Ireland. See section 7 of, and para 4 of Schedule 1 to, the Special Immigration Appeals Commission Act 1997.
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Procedures In SIAC proceedings, the Secretary of State has an obligation to serve exculpatory evidence – ie evidence which either adversely affects his case or supports the appellant’s case. In particular, once the appellant has served his evidence, the Secretary of State must make a reasonable search for exculpatory material and disclose that material (rule 10A of the SIAC (Procedure) Rules S.I. 2003/1034 (as amended by S.I. 2007/1285)). Evidence before SIAC is split into “open” and “closed” material. Open material provides details of the Home Secretary’s suspicions, upon which his decision is based, but this will be backed up by closed (secret) material. (Closed evidence may include intercept evidence which is excluded from most court proceedings in the UK by section 17 of the Regulation of Investigatory Powers Act 2000 but which may be admitted to SIAC by virtue of the exception in section 18 of that Act.) SIAC has a duty to ensure that information is not disclosed contrary to the interests of national security, the international relations of the UK, the detection and prevention of crime or in other circumstances where disclosure is likely to harm public interest (rule 4 of the SIAC Procedure Rules). The Secretary of State cannot rely on closed evidence until a Special Advocate has been appointed (rule 37(2) of the SIAC Procedure Rules). When SIAC is in closed session, the appellant and his chosen counsel/representatives are excluded from court, and the appellant’s interests are represented by the Special Advocate. Special Advocates are appointed by the Attorney-General (or the Lord Advocate or the Attorney-General for Northern Ireland if the proceedings are in those countries) from a list of security-cleared counsel to act as an agent independent of Government in the same way as normal counsel is appointed. The Special Advocates who are appointed are barristers in independent practice of the highest integrity, experience and ability. They will have access to all of the closed material adduced by government and will make submissions to SIAC on behalf of the detainee. This can include submissions that some or all of the “closed” evidence should be disclosed to the appellant (rule 38 of the SIAC Procedure Rules). If SIAC rules that certain evidence should be disclosed, it must either be disclosed or withdrawn from the proceedings and not relied upon by the Secretary of State. The Special Advocate is permitted to discuss details of the case with the appellant before the closed material is presented to him (the Special Advocate). After the closed material has been presented, contact between the two is restricted (rule 36 of the SIAC Procedure Rules). To the extent possible, a gist of that closed material is provided to the appellant (rule 37(4)). Lord Chief Justice Woolf has said of the system: “While the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process.”

September 2009

9-D_SIAC Guidance Note 3: Who has an Immigration Appeal and how is it brought before SIAC?

(i) What decisions give rise to appeal rights? (a) Immigration Decision 1. A person has a right of appeal in immigration matters if an immigration decision (defined in section 82(2) of the Nationality, Immigration and Asylum Act 2002 (NIA)) has been taken. The following are the immigration decisions which arise most commonly in the SIAC context: S82(2)(a) Refusal of leave to enter (LTE) the UK S82(2)(b) Refusal of entry clearance (EC) S82(2)(d) Refusal to vary a person’s leave to enter or remain in the UK if the result of the refusal is that the person has no LTE or LTR S82(2)(e) Variation of a person’s leave to enter or remain in the UK if when the variation takes effect the person has no LTE or LTR (cancellation is variation for these purposes) S82(2)(f) Revocation under section 76 NIA 2002 of indefinite LTE or LTR in the UK S82(2)(j) A decision to make a deportation order under section 5(1) of the 1971 Act S82(2)(k) Refusal to revoke a deportation order under section 5(2) of the 1971 Act Points to note:  If a deportation order has been made and the individual has not yet, but wishes to, appeal (eg an uncontested deportation where the individual changes his mind), he must apply for the deportation order to be revoked and can no longer appeal against the notice of intention to deport. It is the refusal to revoke the deportation order that provides a right of appeal. (See case of T, to be heard Jan 2010.)  References in section 82(2)(d) and (e) to variation of a person’s leave to enter or remain are to the variation of leave generally (rather than to a specific type of leave itself being varied). Therefore a refusal to grant LTR to a person who has LTE is a refusal to vary that person’s leave for the purposes of section 82(2)(d) and will constitute an immigration decision if as a result the individual will have neither LTE nor LTR. If the person continues to have LTE he will have no appeal right but can JR the refusal (although this is unlikely since removal directions are often issued on refusal of LTR which themselves give rise to a right of appeal). And a refusal to grant LTR to a person with DL or Humanitarian Protection will give rise to an appeal if the person is left with no leave at all. The appeal rights are generated when the individual is notified of the immigration decision. The Secretary of State must provide reasons for an immigration decision – see regulation 5 of the Immigration (Notices) Regulations 2003 (S.I. 2003/658). The fact that a decision has been taken on national security grounds is not, in the main, considered to be the reason underlying the decision; rather it’s the basis or grounds for the decision. Therefore wherever possible this should be supplemented with some reasons – eg because the person is a member of a proscribed organisation. The Secretary of State should endeavour to provide as full reasons as possible for an immigration decision.

(b) Other decisions which attract a right of appeal

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2. Other decisions which attract appeal rights are:  Section 83 NIA 2002 provides a right of appeal to a person whose asylum claim has been rejected but who has been granted leave to enter or remain for a period of more than 1 year (whether in a single grant or in aggregate). This includes the grant of discretionary leave for over one year. Such an appeal is in respect of the asylum refusal. Section 83A NIA 2002 provides a right of appeal to a person who has made an asylum claim and has been granted limited leave to enter or remain in the UK as a refugee, who it is decided is not a refugee and in consequence has limited leave to enter or remain otherwise than as a refugee (eg humanitarian protection or discretionary leave (DL)). Section 40A British Nationality Act 1981 provides a right of appeal against a decision to deprive a person of his British nationality under section 40 of that Act.

(c) Exclusion decisions 3. The Secretary of State has a power to exclude a foreign national from the UK where it is conducive to the public good to do so (see SIAC Guidance Note 5: Legal test for nonconducive to the public good: deportation, exclusion and deprivation). A person must be outside of the UK when he is excluded. When that power is exercised by the Secretary of State in person, the Immigration Rules require that any application for entry clearance or leave to enter the UK be refused (see para 320(6) of the Immigration Rules). The power to exclude is either a common law or prerogative power (SIAC has suggested it is a prerogative power see EV v SSHD 2009 para 5). The power must be exercised reasonably, proportionately and consistently. 4. An exclusion decision is not an immigration decision and there is no immigration appeal in respect of such a decision. The individual can instead JR a decision to exclude him from the UK and the JR would be heard by the High Court. However where an immigration decision is taken alongside an exclusion decision (eg refusal of entry clearance or cancellation of existing leave when outside the UK) and SIAC hears the relevant immigration appeal it may also consider the proportionality of the exclusion decision (eg EV v SSHD 2009). For further information see HOLAB Guidance Note: Exclusions.

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(ii) Appeal rights (a) Grounds of appeal 5. An appeal against an immigration decision must be brought on one or more of the following grounds (section 84(1) NIA 2002): (a) The decision is not in accordance with immigration rules (b) The decision is unlawful by virtue of section 19B Race Relations Act 1976 (c) Decision is unlawful under section 6 Human Rights Act 1998 as being incompatible with Convention rights (d) The appellant is an EEA national or member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the UK (e) The decision is otherwise not in accordance with the law (f) The person taking the decision should have exercised differently a discretion conferred by immigration rules (g) That removal of the appellant from the UK in consequence of the immigration decision would breach the UK’s obligations under the Refugee Convention or would be unlawful under section 6 Human Rights Act 1998 as being incompatible with the appellant’s Convention rights (b) Exceptions and limitations to grounds of appeal 6. A number of exceptions and limitations are listed in sections 88 to 99 NIA 2002, some of which are set out below. 7. The grounds of appeal for a refusal of LTE or EC (section 82(2)(a) or (b) NIA 2002) (common in SIAC exclusion cases) can be limited under section 98 NIA 2002 where the Secretary of State certifies that the immigration decision is or was taken (a) by the Secretary of State in person wholly or partly on the ground that the exclusion or removal from the UK of the person is conducive to the public good or (b) in accordance with a direction of the Secretary of State in person which identifies the individual and which is given wholly or partly on that ground. In this way, an appeal in relation to a refusal of LTE is limited to the grounds in section 84(1)(b), (c) and (g) (ie Race Relations Act 1976, human rights, removal inconsistent with Refugee Convention and ECHR). And an appeal in relation to refusal of EC is limited to the grounds in section 84(1)(b) and (c) (ie Race Relations Act 1976, human rights). NB this power only applies to decisions to refuse LTE and EC. 8. SIAC is bound to dismiss such part of an appeal as relates to an asylum claim where the Secretary of State has issued a certificate that the appellant is not entitled to the protection of article 33(1) of the Refugee Convention because article 1F of that Convention applies or article 33(2) of that Convention applies on national security grounds and SIAC agrees with that assessment (section 56 of the Immigration, Asylum and Nationality Act 2006). (c) Is the appeal in or out of country? 9. Section 2(5) of the SIAC Act 1997 confirms that a person only has an in country right of appeal before SIAC if he would have one before the AIT.

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10. Sections 92, 94 and 97A NIA 2002 govern when an appeal is in-country or out of country. Both provisions should be considered in detail. The starting point is that an appeal can be brought in-country if:  it’s in relation to an immigration decision in section 82(2)(c),(d),(e),(f),(ha) or (j) NIA 2002;  the person has entry clearance, arrives at port and is refused leave to enter, unless leave (a) was cancelled on the basis of there being a change of purpose or (b) is refused on the grounds that leave is being sought for a purpose other than that specified in the entry clearance;  if the person has made an asylum claim or a human rights claim while in the UK; or  if the person is an EEA national or member of the family of an EEA national and claims that the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the UK. 11. However, under section 94 NIA 2002, the Secretary of State can:  certify a human rights or asylum claim as clearly unfounded, in which case (a) an appeal against an immigration decision in section 82(2)(c)(d)(e) or (ha) is no longer incountry by virtue of section 92(2) and (b) an appeal by an applicant who has made an asylum or human rights claim in the UK will no longer be in-country by virtue of section 92(4)(a) (but see section 94 (6B) for cases in which certification can’t be made);  in a case in which an asylum or human rights claim has been made or in which an EEA national or member of the family of an EEA national claims the decision breaches their rights under the Community treaties in respect of entry to or residence in the UK, certify that it’s proposed to remove the person to a country of which he is not a national or citizen and there is no reason to believe the person’s ECHR rights will be breached in that country, in which case the appeal is no longer in-country by virtue of section 92(4). 12. Furthermore, under section 97A NIA 2002, where the Secretary of State certifies that a decision to make a deportation order was taken on the grounds that a person’s removal from the UK would be in the interests of national security the appellant would not have an in-country right of appeal by virtue of section 92(2) to (3D) or (in respect of an asylum claim) section 92(4)(a) NIA 2002. He would however have an in-country right of appeal by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State has certified that the removal of the person from the UK would not breach the UK’s obligations under the ECHR and his whole appeal would be in-country (national security as well as human rights grounds). Where the Secretary of State has made such a certification the appellant’s only in-country appeal would be to SIAC in respect of the certification – ie the HR claims.

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(iii) Certification of immigration decision to bring before SIAC 13. Appeals against immigration decisions are usually heard by the Asylum and Immigration Tribunal (AIT). In order for an appeal under section 82(1), 83(2) or 83A(2) NIA 2002 to be heard by SIAC the Secretary of State must certify the immigration decision as follows:  The Secretary of State can certify the decision as being taken by the Secretary of State in person wholly or partly in the interests of national security or in the interests of the relationship between the UK and another country (s97(1)(a) NIA 2002); The Secretary of State can certify the decision as being taken in accordance with a direction of the Secretary of State in person which identifies the individual and which is given wholly or partly in the interests of national security or in the interests of the relationship between the UK and another country (s 97(1)(b) NIA 2002) The Secretary of State can in person certify the decision as being taken wholly or partly in reliance on information which in his opinion should not be made public in the interests of national security, in the interests of the relationship between the UK and another country or otherwise in the public interest (section 97(3) NIA 2002).

14. SIAC has jurisdiction in such cases: section 2(1) of the SIAC Act 1997. 15. Appeals against a decision to deprive an individual of his British nationality would usually be heard by the AIT. Where the Secretary of State certifies that the decision was taken wholly in partly in reliance on information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country or otherwise in the public interest the appeal can only be brought before SIAC (section 40A of the British Nationality Act 1981 and section 2B of the SIAC Act 1997). Points to note:  The certification power in section 97(1) need not be exercised by the Secretary of State acting in person whereas the certification power in section 97(3) must be.  When the person is notified of the certification decision he will be issued with SIAC appeal papers. It is possible to notify the individual of the immigration decision before it has been certified under section 97 NIA 2002. However, often the individual is notified of both the decision and the certification at the same time. This means that one set of appeal papers are issued to the individual.

September 2009

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9-E_SIAC Guidance Note 4: Detention and Bail Pending Deportation
(i) Detention 1. The Secretary of State has a power to detain a person who is the subject of deportation action (para 2 of Schedule 3 to the Immigration Act 1971 (the 1971 Act). A person can be arrested without warrant when the notice of intention to deport has been made and is ready to be served (see para 2(4)). Limitations to power of detention (domestic law) 2. (i) Detention must be for the purpose of securing a person pending deportation. (ii) Detention must be for a period of time reasonably necessary for that purpose. (iii) If it becomes clear that won‟t be able to deport within a reasonable period then the Secretary of State should not detain (even if reasonable period in (ii) has not yet expired). It is for the court to determine whether a deportation has reasonable prospects (ie not Wednesbury reasonableness) but the court should be slow to second guess the Executive‟s assessment of diplomatic negotiations. (iv) The Secretary of State must exercise all reasonable expedition to ensure removal/deportation within a reasonable period of time. 3. Faced with a challenge to the legality of detention, a court will ask itself whether the strategy or proposals being considered by HMG offer a realistic chance of achieving, within a reasonable period of time, a case for the person‟s removal that stood a reasonable prospect of surviving the scrutiny of a UK court. 4. These principles are derived from:  R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704  R(I) v SSHD [2002] EWCA Civ 888, paras 46-47  Youssef v Home Office [2004] EWHC 1884 (QB) 5. In determining whether deportation is going to be possible within a reasonable time the appellant cannot rely on delays caused solely by his own appeal: see (R(I) v SSHD [2002] EWCA (Civ) 888, which was relied upon by SIAC in its bail decision in Y, BB, U, Z and VV of 20 March 2009. 6. Regular detention reviews must be carried out in accordance with the Detention Centre Rules 2001 (made under the Immigration Act 1971). The Court of Appeal has accepted that the absence of those reviews does not itself render the detention unlawful (being appealed to the House of Lords). That is because paragraph 2 of Schedule 3 to the Immigration Act 1971 does not specify that compliance with those rules/guidance is a necessary condition of lawful detention. However, a breach of the rules or failure to follow the procedures in the guidance could attract other remedies in public law, such as a declaration of non-compliance by the SSHD (SK (Zimbabwe) v SSHD [2008] EWCA Civ 1204). Tort of false imprisonment 7. Where a claim is brought alleging the tort of false imprisonment the claimant must prove imprisonment and then the Secretary of State must prove justification: Youssef v Home Office [2004] EWHC 1884 (QB). Legal basis of detention (ECHR)

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8. Article 5(1)(f) ECHR permits detention of a person against whom action is being taken with a view to deportation. Under article 5(1)(f) detention is only justified for as long as deportation proceedings are in progress and prosecuted with due diligence (see SIAC bail decision Y, BB, U, Z and VV of 20 March 2009). And detention must be determined by a procedure prescribed by law (to guarantee against arbitrariness); article 5(4) ECHR affords certain safeguards to proceedings in which liberty is at stake (see further below regarding bail). Place of detention 9. This will depend on the risk posed by the individual. Most often SIAC appellants are detained in a Category A prison, although there would be nothing to prevent their being detained in an immigration removal centre if this was considered appropriate. (ii) Bail 10. SIAC has the power to grant bail to individuals (a) who are facing deportation on the grounds of national security (b) where the Secretary of State has certified that the detention is necessary in the interests of national security or (c) who have been refused leave to enter on the ground that exclusion is in the interests of national security (s3 SIAC Act 1997). (NB SIAC‟s bail jurisdiction will not necessarily cover all cases in which it has jurisdiction over the substantive appeal.) 11. Schedule 2 to the 1971 Act applies to that bail - Part 1 of that Schedule where an appeal has not been brought and Part 2 in cases where an appeal has been brought (see paras 2(4A) and 3 of Schedule 3 to the 1971 Act). Schedule 2 applies with the modifications set out in Schedule 3 to the SIAC Act 1997:  SIAC can grant bail where the appellant enters into a recognisance conditioned for his appearance before SIAC on a later date and conditions can be attached which are likely to result in the person‟s appearance before SIAC at the later date (paras 22 and 29 Sched 2 as modified by Sched 3 SIAC Act 1997) But this power cannot be exercised without the consent of the Secretary of State if directions for the person‟s removal are in force or the power to give such directions is exercisable (para 30(1) Sched 2 1971 Act)

Relevance of national security and abscond risks 12. Abscond and risk of danger to the public have been found to be relevant to the lawfulness of detention (R(I) v SSHD [2002] EWCA Civ 888; R(A) v SSHD [2007] EWCA (Civ) 804). 13. However, SIAC has held that where the only reason for the individual‟s detention is the outstanding appeal brought by the appellant (eg the national security and safety on return cases are fully in place) the courts need not take into account the abscond and national security risk when determining whether or not a person should be granted bail because the period in which the appeal is being brought is to be ignored in determining the lawfulness of detention so the NS/abscond risks become irrelevant. The only requirement is that the appellant is detained pending deportation and the SSHD is exercising all reasonable expedition. This is supported by Strasbourg jurisprudence (Chahal, paras 112 and 113). Nonetheless, SIAC has taken the view that this would be unacceptable given the length of the appeals process and will therefore take both the national security and abscond risks into account when determining whether an individual should be granted bail. See bail decision in Y, BB, U, Z and VV of 20 March 2009, paras 9 and 12.

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Bail conditions 14. Whilst the SIAC Act 1997 is silent on the matter, SIAC imposes conditions on bail that are necessary for the purposes of protecting national security/preventing abscond. Its power to do so is inferred from the fact that bail can only be granted under s3 SIAC Act 1997 in national security cases and it must have been intended that any bail granted to persons considered to be a threat to national security would be able to address those concerns through bail conditions. Otherwise, bail would almost certainly never be granted in national security cases. Application of article 5(4) ECHR to bail proceedings 15. SIAC has held that article 5(4) ECHR applies to bail proceedings. However, it has rejected the argument that article 5(4) requires the disclosure of closed material to the appellant. In doing so, it distinguished the ECtHR case of A and others 2009, in which the ECtHR found the failure to disclose sufficient closed material to enable effective instructions to be given to the Special Advocate to be incompatible with article 5(4). It did so on the basis that the detention in A and others was not under article 5(1)(f) whereas in SIAC bail hearings the appellants are detained in accordance with article 5(1)(f) and the detention is truly ancillary to the purpose of deportation. Furthermore, it recognised that in SIAC bail cases there is already a finding that the person poses a risk to NS in proceedings to which article 5(4) and article 6 do not apply and that finding can be relied upon and is not open to reconsideration in SIAC bail hearings. See SIAC bail decision in Y, BB, U, Z and VV of 20 March 2009. 16. This bail decision is at the time of writing subject to a judicial review (U and XC v SIAC 2009). A preliminary issue to be resolved is whether the High Court has any jurisdiction to hear a judicial review against the decision of a superior court of record; the Secretary of State will argue it does not. It is also anticipated that further arguments will be run before SIAC in this regard in reliance on the House of Lords control order judgment SSHD v AF and another and another [2009] UKHL 28. See also SIAC Guidance Note 10: Fair Hearing: ECHR considerations Jurisdiction where appeal exhausted 17. SIAC continues to have bail jurisdiction in deportation cases where the domestic appeal has been exhausted. Section 3(2)(c) SIAC Act 1997 would apply. Where a deportation order is signed and the appeal is exhausted the person is detained under para 2(3) of Schedule 3 to the 1971 Act and para 2(4A) of that Schedule applies. (In contrast, where an appeal against a notice of intention to deport is outstanding, the person is detained under para 2(2) of Schedule 3 to the 1971 Act and para 3 of that Schedule applies). In consequence paras 22 to 25 Schedule 2 to the 1971 Act (not paras 29 to 33) apply where the appeal is exhausted, as modified by the SIAC Act in SIAC cases. [This was accepted by SIAC in relation to Qatada in Feb 2009.] 18. Breach of bail conditions  An individual who is bailed can be arrested without warrant by a constable or an immigration officer where that officer has reasonable grounds for believing that the person is likely to break, is breaking or has broken any bail conditions (paras 24(1) and 33(1) Sched 2 1971 Act). SIAC held (in Abu Qatada, 2 December 2008) that „likely to break‟ requires there to be „substantial grounds for believing‟ that bail will be breached, which is a lower threshold than „more likely than not‟ (ie the threshold is lower than balance of probabilities);  A constable or immigration officer can enter premises for the purposes of effecting that arrest, using reasonable force, where a warrant to do so is granted by a justice of the peace (para 17(2) Sched 2 1971 Act as applied by paras 24 and 33(1) of that Sched);

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Such a person must be brought before SIAC within 24 hours of his arrest (paras 24(2) and 33(2) Sched 2 1971 Act as modified by Sched 3 SIAC Act 1997). SIAC has indicated (users‟ group meeting) that it is content for the individual to be brought before SIAC on the next working day. However, the individual would have a prima facie case of unlawful detention where that is more than 24 hours after the person is initially detained. In Qatada‟s case SIAC offered a telephone hearing over the weekend, which was not taken up on that occasion (2 December 2008). The remedy would be to amend the SIAC Act 1997 so that the person is to be brought before SIAC on the next working day rather than 24 hours after arrest; Where the risks associated with arresting the person and subsequently having them released again by SIAC are considered to be too great, it is possible to seek a closed hearing without notice to the appellant (but with special advocates present) and ask for a preliminary indication from SIAC which will enable the SSHD to determine whether to risk proceeding with an arrest (Qatada, 2 December 2008). However, SIAC has made clear that this should be used sparingly. Experience suggests that it may be simplest to arrest the person and bring them before SIAC rather than seek a bail revocation hearing on limited notice to the individuals. That is because a subsequent adjournment of the bail revocation hearing could increase the abscond risk and the Secretary of State may then be criticised for his subsequent exercise of the arrest powers: see unlawful detention claims arising out of bail hearings of Y, BB, U, Z and VV in February 2009. SIAC can order that the person be detained or release him on bail (with the same or new bail conditions) (paras 24(3) and 33(3) Sched 2 1971 Act as modified by Sched 3 SIAC Act 1997).

19. Points to note:  SIAC has tended to grant bail to individuals who have been in detention for some time and whose appeals are likely to continue for some time where there is no new national security material relating to those persons. SIAC has been minded to relax bail conditions to reward compliance. SSHD has objected to this approach. Generally speaking, the police should use the para 17 Sched 2 1971 Act power to enter premises with a warrant if they are seeking to arrest a person for breaching SIAC bail conditions. The police may have other powers to enter premises and it may be that they would be appropriate in certain cases such as where it‟s necessary to enter the premises immediately in order to save life or limb. However, care should be taken to avoid any abuse of power. Entry to arrest for breach of bail is expressly provided for in para 17. Bail orders often give IOs a power to enter the individual‟s premises to verify his presence and compliance with conditions. It would be an abuse of that power to use it to enter the premises for the purposes of arresting the person; the power in para 17 Sched 2 1971 Act applies for that purpose. However, if the IO is already on the premises for the purpose of verifying compliance and whilst there decides to arrest he would not need to seek a warrant to re-enter the premises for that purpose. It is desirable to arrest a person within a reasonably short period after the breach. However, earlier breaches which were not acted upon can be relied upon subsequently when pursuing a separate breach. Bail conditions do not interfere with the right of the police and agencies to undertake surveillance of the individual. The Bail Act 1976 is not of direct application in immigration cases but the courts sometimes draw analogies with it in immigration cases. There is no appeal right in respect of bail decisions. And the Secretary of State is currently arguing that the High Court‟s non-statutory power of judicial review does

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not extend to superior courts of record (such as SIAC) and therefore to SIAC bail decisions. Whilst a person on strict SIAC bail conditions would need to seek a variation before they leave the UK voluntarily it‟s not clear that there is any reason (other than immediate threat to the UK and therefore arrest) that would prevent SIAC from granting such a variation and enabling the SSHD to control that person‟s departure from the UK. The provision of housing could fall within the provision of services/facilities under the Race Discrimination Act 1976 notwithstanding an exemption under s19D of that Act. It is not clear whether a duty of care is owed by the Secretary of State in respect of accommodation. The Home Office would likely resist such an argument.

Applications for bail variation: procedure 20. There is a draft standard bail variation application form which is used to make requests of SIAC to temporarily vary bail conditions of an individual subject to SIAC bail for a particular purpose. The Secretary of State should have the opportunity to make submissions on the request and, ultimately, set out whether he objects to the variation, does not object, or does not object provided that certain conditions are met. 21. SIAC has determined that where the variation is for medical or legal reasons 2 days notice of the variation must be given by the individual to the Secretary of State. Where the variation is for other reasons 5 days notice must be given. However, in all cases, SSHD must be informed as soon as practicable after the bailee becomes aware of the need for the variation. 22. Process a. TSol is first alerted to a bail variation request when it receives a completed standard bail variation application form from the legal representatives of an individual subject to SIAC bail conditions. b. TSol must then obtain the instructions of the Secretary of State as to whether he has any objections to the request. c. TSol will, therefore, send the request by email, along with any thoughts they may have, to the following parties: i. SCD ii. SyS - the request should go to LAC2 as well as the specific caseholder for that individual‟s case d. It may be that further information relating to the request is required in which case TSol will revert to the legal representatives asking for this. e. Once SCD and SyS have sufficient information relating to the request, they will both carry out various checks internally and with relevant agencies. Both SCD and SyS need to respond to TSol stating (i) whether they have any objections to the request, and (ii) any conditions that might apply if they do not object or if SIAC grants the request despite the Secretary of State‟s objection (see below). f. Once both SCD and SyS have given their instructions, TSol should draft a response in the text box on page 2 of the standard bail variation request form. This should be sent to SCD for approval. Only SCD are able give final instructions to TSol although the wording of any response can be discussed between TSol, SyS, SCD and, where appropriate, other agencies. TSol will then relay the Secretary of State‟s position to SIAC and the individual‟s legal representatives by way of the response box.

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g. SIAC then proceeds to make a decision on the request bearing in mind the position of the Secretary of State. Once SIAC has responded, this response must be sent to SCD and SyS immediately. SCD will alert the relevant operations team and the monitoring company (plus police and local immigration team/ATLU in certain circumstances) so that they are aware of the individual‟s whereabouts and if he will be outside his boundary or curfew times at any particular time or out of his residence. 23. The standard bail variation form sets out the conditions which, where relevant, apply to all bail variation requests which are granted. These are as follows:
For the avoidance of doubt, and in ALL cases :i) Any leaving of the boundary (or residence if after curfew hours) or time outside the usual curfew time is for the SOLE purpose of attending the appointment (that is the subject of the variation) and the appellant will travel directly there and back to the residence, telephoning SERCO upon departure and return to the residence.* Unless SIAC has authorised the variation, the appellant will adhere to his current bail conditions, even if the SSHD has no objections to the proposed variation. The SSHD reserves the right to request more information in support of the application if appropriate. The SSHD is willing to consider requests in principle without supporting documentation but will object if the supporting documentation is not forthcoming for the actual variation. You should inform the SSHD If you wish to cancel this variation request whether or not the appointment is to be rescheduled.

ii) iii) iv)

v)

* Note a SIAC reference to “SERCO” refers to either SERCO or G4S (for the purpose of bailees in England and Wales) who split the electronic monitoring of cases geographically. 24. The FCO and other “non-operational” agencies/departments are usually not involved in bail variation requests. The request is also not as a matter of course sent to legal advisers of the Home Office or SyS. If the request involves a legal issue which needs to be referred, then LAB and SyS Legal Advisers may be contacted either by TSol or SCD/SyS. Key Materials:  TSol letter to SIAC with generic arguments relating to bail, 31 July 2008

September 2009

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9-F_SIAC Guidance Note 5: Legal test for Non-Conducive to the Public Good: Deportation, Exclusion and Deprivation 1.    A foreign national can be deported from the UK where deportation is conducive to the public good. A foreign national who is outside the UK can be excluded from the UK where his presence is not conducive to the public good. A British national can be deprived of his British citizenship where deprivation is conducive to the public good (so long as he will not be rendered stateless).

2. There is no clear definition of non-conduciveness and these tests provide the Secretary of State with a wide discretion. National security and unacceptable behaviours are two grounds of non-conduciveness but the concept is wider. Whilst there may be merit in giving the concept the same interpretation across the various contexts in which it is used (albeit recognising that application may vary between contexts), work within Government has not yet established such a single interpretation and the courts appear to have drawn some distinctions. (i) National Security cases 3. If the Secretary of State wishes to rely on certain undesirable acts as having been undertaken by the individual, the civil standard of proof applies (on the balance of probabilities). Therefore SIAC must consider it more likely than not that the individual in question has undertaken certain undesirable acts or been involved in certain undesirable activities before it will make such a finding (SSHD v Rehman [2001] UKHL 47 para 55). 4. The courts have accepted that deportation may be conducive to the public good in the absence of any such proven act so long as, viewed objectively, it is clear the person poses a risk to national security. The question of whether deportation is conducive to the public good is a question of risk and judgment rather than of standard of proof. It will be necessary to take into account the degree of probability of prejudice to national security, the importance of the security interest at stake and the serious consequences of deportation for the individual. The Secretary of State is not required to wait until directly harmful activities have taken place (SSHD v Rehman [2001] UKHL 47 paras 22, 29 and 56). This standard is not too far from a standard of reasonable suspicion since the risk assessment must be reasonable. We would argue that Rehman permits deportation on the basis of the cumulative weight of general unproven material and in the absence of any specific act being proven on the balance of probabilities. SIAC has accepted such an approach: Y v SSHD 24 August 2006 para 123. 5. In contrast, SIAC appears to require that at least one act be proven on the balance of probabilities before deprivation of British nationality will be conducive to the public good: Al Jedda v SSHD 7 April 2009 para 9. We will want to challenge this approach.

6. Points to note: a. Whilst there must be a real possibility of an adverse effect on the UK, national security is not limited to direct threats to the UK or to action which is targeted at the UK itself. Action against a foreign state which may be capable indirectly of affecting the security of the UK or the safety and well-being of the UK and its citizens may mean that it would be in the interests of national security to deport a person. b. Whilst the definition of national security is a question of law the question of whether something is in the interests of national security is a matter of judgment and policy rather than of law. The sophistication of the means available, the speed of movement of the person/goods and the speed of modern communication are all factors which may be taken into account in determining whether a person’s deportation would be in the interests of national security (SSHD v Rehman [2001] UKHL 47 paras 16, 50) c. The courts recognise that the SSHD is ‘undoubtedly in the best position to judge what national security requires even if his decision is open to review’ Rehman v SSHD [2001] UKHL 47 at 26 d. Where a number of the acts in question relate to national security and other acts, whilst being undesirable, do not, it is advisable to rely on both to ensure the test for deportation is satisfied even if SIAC concludes that the national security case is not fully made out (demonstrated by AA v SSHD, SIAC determination 14 May 2007). It may be argued that attempting to deport someone on national security grounds having tried and failed to deport them on other grounds is an abuse of process (unless the evidence that they are a threat to national security comes to light only after the first attempt has failed).

(ii) Unacceptable Behaviour cases 7. The Secretary of State may exclude a foreign national where there is any credible evidence that they have been directly involved in unacceptable behaviour (UB). UB is: a. b. c. d. Writing, producing, publishing or distributing material; Public speaking including preaching; Running a website; or Using a position of responsibility such as teacher, community or youth leader

to express views which:     Foment, justify or glorify terrorist violence in furtherance of particular beliefs; Seek to provoke others to terrorist acts; Foment other serious criminal activity or seek to provoke others to serious criminal acts; or Foster hatred which might lead to inter-community violence in the UK.

This UKBA policy must be applied in accordance with human rights.

8. Counsel has advised that in principle there is no reason why such behaviour could not be relied upon to justify a decision that deportation is conducive to the public good but that the following should be taken into account: a. In a deportation case the individual is more likely to have article 8 rights so a UB will not necessarily be sufficient to render the interference proportionate; b. In a deportation case the passage of time since the conduct complained of may be of relevance, it being more difficult to demonstrate that deportation is conducive to the public good if the conduct took place some time ago and there is no risk of repetition; c. In a deportation case it may be more difficult to rely on conduct which took place before 13 April 2006 (when s1 of the Terrorism Act 2006 received Royal Assent) unless that conduct can be shown to give rise to risk. (Robert Palmer, 5 Dec 2008 in context of OO) (iii) Other non-conducive conduct 9. The Secretary of State excludes foreign nationals on grounds of public order, international relations/foreign policy, serious organised crime, involvement in largescale corruption in priority countries and membership of an organisation under s3 of the Terrorism Act 2000. 10. The Secretary of State deports foreign nationals on the grounds of criminality. And intelligence which falls short of a conviction can also justify deportation. See: a. HOLAB Guidance Note: Is Deportation Conducive to the Public Good? b. HOLAB Guidance Note: Automatic Deportations 11. UKBA guidance is currently being prepared which sets out when criminal conduct will render deprivation of citizenship conducive to the public good.

September 2009

9-G_SIAC Guidance Note 6: Safety on Return in Deportation Cases
Article 3 ECHR 1. Article 3 of the European Convention on Human Rights (ECHR) renders it unlawful to deport a person where there are substantial grounds for believing that the person will be exposed to a real risk of torture or to inhuman or degrading treatment or punishment on return (Soering v UK 1989). Any threat posed by the individual to the UK is irrelevant and cannot be taken into account (Chahal v UK 1996; Saadi v Italy 2008). Similar guarantees are found in article 3 of the UN Convention against Torture1 and article 7 of the International Covenant on Civil and Political Rights2. The UK is party to all 3 conventions. 2. The best articulation of what amounts to a real risk for the purposes of article 3 ECHR is set out in the Court of Appeal‟s judgment in AS and DD [2008] EWCA Civ 289 and the ECtHR‟s judgment in Saadi v Italy 2008. In summary, The ECtHR has expressly rejected our argument that real risk means more likely than not. The threshold is something more than a mere possibility but less than more likely than not and it is not easy to satisfy. The following attempts to summarise the key points:  The requirement that there be substantial grounds for believing that there would be a real risk of ill-treatment means simply that there must be „a proper evidential basis for concluding that there was such a real risk‟ (para 24 CoA). The decision as to real risk cannot be based on mere assertion or speculation (para 28 CoA) Saadi v Italy 2007 confirmed that real risk does not require the treatment to be more probable than not (para 55 CoA) (and in doing so rejected HMG‟s argument) A mere possibility of ill-treatment on account of an unsettled situation is insufficient (para 131 ECtHR) “A real risk is more than a mere possibility but something less than a balance of probabilities or more likely than not. We do not think that it is helpful further to elaborate the test beyond that stated in Saadi and the cases referred to in it.” (para 60 CoA) The test is not one of „real and immediate risk‟ (CoA para 64) But the test is a stringent one which „it is not easy to satisfy‟ (CoA para 65) The ECtHR‟s examination of the existence of a real risk will be rigorous (para 128 ECtHR) It‟s for the applicant to adduce evidence of the real risk and for the Government to dispel doubts about it (para 129 ECtHR) ECtHR must examine „the foreseeable consequences‟ of returning a person bearing in mind the general situation in the country (para 130 EctHR) The risk is assessed at the time of expulsion or if it‟s not taken place the time of ECtHR consideration (para 133 ECtHR)

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Assurances
1

Article 3 of the UN Convention Against Torture prohibits states which are party to that Convention from expelling, returning or extraditing a person to another country where there are substantial grounds for believing he would be in danger of being subjected to torture. 2 Article 7 of the International Covenant on Civil and Political Rights contains similar wording to article 3 ECHR.

3. Assurances are a means of ensuring that deportations can take place in compliance with these obligations; they enable us to obtain case-specific information that enables us to satisfy ourselves that the receiving State will not treat persons who are deported from the UK in a way that would be contrary to article 3 ECHR. 4. SIAC requires 4 conditions to be satisfied if assurances are to be relied upon (BB v SSHD, SIAC determination 5 December 2006, para 5):     the terms of the assurances must be such that, if they are fulfilled, the person returned will not be subjected to treatment contrary to article 3 ECHR; the assurances must be given in good faith; there must be a sound objective basis for believing that the assurances will be fulfilled; fulfilment of the assurances must be capable of being verified.

5. The House of Lords has upheld this approach and confirmed that assurances are to be assessed on a case by case basis (RB (Algeria) and another and OO (Jordan) v SSHD [2009] UKHL 10). 6. The ECtHR has held that, where assurances are used, they need to be examined in order to establish whether they provide a sufficient guarantee and that the weight to be given to assurances depends in each case on the circumstances obtaining at the material time (Saadi v Italy, para 148). 7. Points to note:  In exceptional cases, article 3 ECHR may prevent deportation if medical treatment required by the individual will not be available on return (D v UK 1997). However, jurisprudence under article 3 ECHR suggests that whilst treatment needs to be available somewhere in the receiving country, it is not necessary to guarantee that, or even consider whether, the individual will be able to access that treatment in order for the requirements of article 3 ECHR to be met (Ndangoya v Sweden 2004). (Note, however, that the question of accessibility may be relevant for the purposes of para 364 of the Immigration Rules under which the Secretary of State must consider whether the presumption in favour of deportation is outweighed in any particular case.3)

See also SIAC Guidance Note 13: Guide to Assurances Other ECHR rights 8. A real risk of a flagrant denial of certain ECHR rights other than article 3 may prevent deportation (Ullah and Do v SSHD [2004] UKHL 26). Whether there is a flagrant denial of a right will depend on whether there is a complete denial or nullification of the right (EM (Lebanon) v SSHD 2008; RB (Algeria) and another and OO (Jordan) v SSHD [2009] UKHL 10 para 246).

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The immigration rules in force at the time the decision was taken are the ones which will apply to that decision. Earlier versions of rule 364 did not contain a presumption in favour of deportation.

9. With regard to article 6 ECHR (fair trial) the House of Lords has held (in RB (Algeria) and another and OO (Jordan) v SSHD [2009] UKHL 10) that: the proper approach is to take all the factors together and consider in the round whether there is a real risk of a flagrant denial (para 246); it is not necessary to obtain a high degree of assurance that evidence obtained by torture will not be admitted on return (para 153); the lack of independence of the Jordanian judiciary was not sufficient to give rise to a flagrant denial. This is being challenged in Strasbourg by O. 10. With regard to article 5 ECHR (detention) the House of Lords has held (in RB (Algeria) and another and OO (Jordan) v SSHD [2009] UKHL 10) that: being detained without charge for 50 days without being brought before a court did not amount to a flagrant denial of article 5. Reference was made to Lord Steyn‟s judgment in Ullah (para 43) in which he gave the example of a flagrant denial of article 5 being arbitrary detention for many years. Breach of article 8 ECHR in-country 11. Deportation may be contrary to article 8 ECHR because of rights enjoyed by the appellant or his family in the UK prior to deportation. For more information see HOLAB Guidance Note: Is Deportation Compatible with Article 8?

September 2009

9-H_SIAC Guidance Note 7: Deprivation of Nationality
Power to deprive 1. The Secretary of State may deprive an individual of their British nationality if: a. he is satisfied that deprivation is conducive to the public good and the person would not be rendered stateless (s40(2) and (4) British Nationality Act 1981); or b. where registration or naturalisation of British nationality was obtained by fraud etc (s40(3) and (6) 1981 Act) Process 2. There is a 3 stage process: a. Secretary of State decides to make a deprivation order; b. Secretary of States serves a notice that he has so decided; c. Secretary of State makes a deprivation order. 3. A deprivation order cannot be made until the individual has been served with a notice specifying that the Secretary of State has decided to make an order, the reasons for the order and the person’s right of appeal (s40(5) 1981 Act). 4. The notice is deemed to have been given to the individual: a. if sent by post from and to a place in UK on the 2 nd day after it is sent; b. if sent by post from or to a place outside UK on the 28th day after it is sent; c. in any other case on the day on which the notice is delivered. If the person’s whereabouts are not known the notice should be sent by post addressed to him at his last known address. (Reg 10 British Nationality (General) Regulations 2003 (S.I. 2003/548)) 5. There is no common law obligation to seek representations from the individual before making the deprivation order: a. Counsel advised there was a ‘fairly slim’ chance of arguing successfully that representations must be sought after service of the notice and before making the deprivation order because by then the decision to deprive will have been taken and the individual will have been notified of his appeal rights. b. Counsel advised that the case for seeking representations before making a deprivation decision is stronger. But it could be properly argued that Parliament intended s40 of the 1981 Act (and the full right of appeal) to provide the entire scheme without any supplementation by the common law and therefore without any such obligation to seek representations. Even if there is such an obligation, Counsel advised it would be disapplied if the purpose of deprivation (and exclusion) is to prevent an individual returning to the UK to engage in immediate terrorist activity. (Jonathan Swift, con 4 February 2009, note with HOLAB)

6. A deprivation order can therefore be made as soon as the notice has been given to the individual (eg NM, SIAC appeal pending). 7. The Secretary of State currently takes deprivation decisions and makes deprivation orders on non-conducive grounds personally. However, he can delegate this power to an official of the Secretary of State (as in NM, SIAC appeal pending). 8. Points to note: a. As a general rule, it is not an abuse of process to deprive a person of their nationality whilst they are outside the UK and to then exclude without delay. But there will be difficult cases and legal advice should be sought. b. Where deprivation is on fraud etc grounds the Secretary of State currently seeks information from the individual before making a decision to deprive. There is a risk that this will be seen to be seeking representations and therefore to undermine our argument that we don’t need to seek such representations in the national security context. c. Where deprivation is on fraud etc grounds the order will not be made until any appeal has been determined. But where deprivation is on non-conducive grounds the order may be made immediately after the notice has been given and prior to any appeal being brought. d. It is advisable to have proof that the notice has been served. e. There is no requirement to serve the actual deprivation order on the individual. Appeal 9. An individual who has been served notice of the decision to make an order to deprive him of his British nationality has a full right of appeal: s40A(1) of the 1981 Act; Al Jedda v SSHD 7 April 2009 para 7. 10. The appeal lies to the AIT unless the Secretary of State certifies that the decision was taken wholly or partly in reliance on information which should not be made public in the interests of national security or diplomatic relations or otherwise in the public interest, in which case the appeal will lie to SIAC: s40A(2) of the 1981 Act; s2B SIAC Act 1997. 11. Article 6 ECHR does not apply to deprivation appeals: Al Jedda v SSHD 22 October 2008 (preliminary issue). Guidance 12. See Chapter 55 of the Nationality Caseworking Instructions. Additional material   Note on citizenship served by SSHD in Al Jedda (sets out the effect of citizenship) Al-Jedda v SSHD 7 April 2009 (SIAC determination)

September 2009

9-I_SIAC Guidance Note 8: Refugee Law issues
1. As a general rule a refugee will not be deported or excluded from the UK. But there are two exceptions under the Refugee Convention which generally enable deportation of persons who are suspected of being a national security risk, even if they are refugees:   Article 33(2) permits a refugee to be returned where they pose a danger (refoulement) Article 1F enables refugee status to be refused or withdrawn at which point they can be deported.

In either case, once outside the UK, the individual can be excluded from the UK. Non-refoulement 2. A person who benefits from the protection of the Refugee Convention (for which see article 1 of the United Nations Convention relating to the Status of Refugees 1951) cannot be returned/refouled to a country where his life or freedom would be threatened for a “Convention reason” unless (a) there are reasonable grounds for regarding the person to be a danger to the security of the UK or (b) he has been convicted of a particularly serious crime and constitutes a danger to the community of that country (for which see section 72 of the Nationality, Immigration and Asylum Act 2002) (article 33(2) of the Refugee Convention 1951). However, article 33(2) of the Refugee Convention cannot be relied upon to justify deportation where the deportation would be contrary to article 3 ECHR (see SIAC Guidance Note 6: Safety on Return in Deportation Cases). Exclusion from the Refugee Convention 3. A person can be excluded from the protection of the Refugee Convention in the circumstances set out in article 1F of that Convention under which the Secretary of State must have „serious reasons for considering‟ that the person has committed certain crimes/acts. 4. Points to note: a. People who are excluded from the protection of the Refugee Convention are not necessarily also excluded from the UK (often they are not). b. Where the Secretary of State issues a certificate that the person is excluded under article 1F of the Refugee Convention this may impact upon the person‟s appeal. (For more information on appeal rights see “SIAC Guidance Note 3: Who Has an Immigration Appeal and How is it Brought before SIAC?”.) c. Section 54 of the Immigration, Asylum and Nationality Act 2006 provides that article 1F(c) of the Refugee Convention (acts contrary to the purposes and principles of the UN) shall be taken as including acts relating to terrorism. d. The House of Lords has accepted that when determining whether a person is excluded from the protection of the Refugee Convention by virtue of Article 1F(c) (acts contrary to the purposes and principles of the UN) the Secretary of State can take into account actions of that individual committed after his arrival in the UK: RB (Algeria) and another and OO (Jordan) v SSHD [2008]UKHL 10 paras 128-129.

e. Article 33(2) Refugee Convention cannot be relied upon to permit deportation where the deportation would be contrary to article 3 ECHR. f. The test in article 33(2) is different to that in article 1F of the Refugee Convention. This means that it may not always be possible to remove refugee status when we rely on article 33(2) to refoule someone. g. There is no reason why a person can‟t be excluded from the UK when they are refouled, even if they are not excluded from the protection of the Refugee Convention. However, it should be noted that the exclusion will not prevent the person returning to the UK if he remains in possession of a valid Refugee Convention travel document. Travel documents need not be issued if there are compelling reasons of national security or public order not to (article 28(1) Refugee Convention) and we would argue that we can withdraw a travel document on such grounds. h. Paragraphs 336 to 339BA of the Immigration Rules apply to the refusal and revocation of asylum. i. A person must be given written notice that he is to be deprived of his refugee status: Article 38(1) of the Asylum Procedures Directive (Council Directive 2005/85/EC); para 339BA of the Immigration Rules. This includes cases where refugee status was granted following a deception: article 14(3)(b) of the Qualification Directive (2004/83/EC). j. Whilst there is no requirement that ILR be cancelled when refugee status is revoked, UKBA guidance provides that it will be in most cases. k. Revocation of refugee status does not itself attract a right of appeal but an accompanying immigration decision will. l. Persons who have refugee status cannot be subject to employment or residence conditions. However, they can be subject to reporting (as opposed to police registration) requirements (although this has not been done to date). 5. The fact that an individual has claimed asylum is subject to a duty of confidentiality and a very high level of protection is afforded by the law of confidentiality in this context. Nonetheless, that duty is subject to an overriding public interest requiring disclosure. For discussion see advice of Robin Tam April 2008 and note of con of 1 July 2008 (with HOLAB).

September 2009

9-K_SIAC Guidance Note 10: Fair Hearing: ECHR Considerations
Substantive hearing 1. The House of Lords has found that, in the context of control order proceedings, article 6 ECHR requires the disclosure of a minimum amount of information (regardless of whether disclosure would be contrary to the public interest) to enable the appellant to provide effective instructions to the Special Advocate: SSHD v AF and another [2009] UKHL 28. 2. This should not impact upon substantive immigration proceedings before SIAC since article 6 does not apply to those proceedings: a. The ECtHR has found that article 6 ECHR does not apply to decisions regarding the entry, stay and deportation of aliens (since these do not determine civil rights even if they may affect the individual’s article 8 rights): Maaouia v France 2000 (article 8); Mamatkulov v Turkey 2005 (article 3). SIAC applied this in OO v SSHD 27 June 2008 (preliminary issue) (para 14) finding that article 6 does not apply to deportation appeal proceedings. And we would argue that this ECtHR jurisprudence means that article 6 does not apply to any appeal relating to an immigration decision governing entry. b. The ECtHR has also found that article 6 ECHR does not apply to decisions to deprive an individual of their citizenship: X v Austria 1972; Zeibek & others v Greece 1997; Naumov v Albania 2005; Makuc & others v Slovenia 2007. SIAC applied this in Al Jedda v SSHD 22 October 2008 (preliminary issue). c. The ECtHR has also found that article 6 ECHR does not apply to decisions regarding the grant or refusal of citizenship: S v Switzerland 1988; Soc v Croatia 2000. 3. It is not clear whether the common law requirements of fairness would require a similar level of disclosure to article 6 as applied to control order proceedings (see SSHD v AF and another [2009] UKHL 28 paras 85-86). Even if it did, in the context of SIAC proceedings the common law is overridden by the SIAC (Procedure) Rules 2003 S.I. 2003/1034, which prohibit disclosure that is contrary to the public interest (see rule 4).

Bail proceedings 4. Article 6 ECHR is not engaged by a review of the deprivation of liberty under article 5(4): Roberts v Parole Board [2005] 2AC 738 (paras 40 and 42). 5. However, article 5(4) ECHR applies to SIAC bail proceedings: U, Y, Z, BB and VV v SSHD 20 March 2009 para 17: a. The requirements of article 5(4) vary depending on the circumstances of the case and the basis of detention: Chahal v UK 1996 para 112; A and others v UK 2009 para 203. b. The ECtHR has recognised that the appointment of a special representative with security clearance to consider CLOSED material can provide an appropriate safeguard: Al Nashif v Bulgaria 2003.

1

c. SIAC found that article 5(4) does not require the disclosure of information contrary to the public interest in SIAC bail proceedings in deportation cases: U, Y, Z, BB and VV v SSHD 20 March 2009. In doing so it recognised that article 5(4) requires less disclosure in that context than in the context of the Belmarsh detainees (where the ECtHR found that appellants needed to be given sufficient material to enable effective instructions to be provided to the Special Advocate regardless of whether disclosure was contrary to the public interest – A and others v UK 2009). It did so on the basis that the detention in A and others was not under article 5(1)(f) whereas in SIAC bail hearings the appellants are detained in accordance with article 5(1)(f) and the detention is truly ancillary to the purpose of deportation. Furthermore, it recognised that in SIAC bail cases there is already a finding that the person poses a risk to NS in proceedings to which articles 5(4) and 6 do not apply and that finding can be relied upon and is not open to reconsideration in SIAC bail hearings. We are putting forward this distinction in a judicial review of SIAC’s decision of 20 March 2009 which is to be heard in September 2009 (the JR is subject to jurisdiction being granted). d. In that JR the Secretary of State is also putting forward a supplementary argument that the procedural requirements of article 5(4) do not apply to SIAC’s consideration of matters which article 5(4) does not require SIAC to consider – in particular the national security and abscond risk. (SIAC rejected this argument in U, Y, Z, BB and VV v SSHD 20 March 2009.) Rather, the Secretary of State will argue that article 5(4) only applies to those matters which article 5(1)(f) requires to be determined. 6. Common law principles of natural justice require that a person whose liberty is at stake be made aware of the charges and allegations against him: eg SSHD v MB [2007] 3 WLR 681 (para 29). In the context of SIAC proceedings, these common law principles are overridden by the express prohibition on disclosure contrary to the public interest in the SIAC (Procedure) Rules 2003.

September 2009

2

9-L_SIAC Guidance Note 11: Information sharing with receiving States:
1. In deportation proceedings it will be necessary to pass personal information regarding the individual being deported to the authorities of the receiving state and possibly to medical institutions in that state. In doing so it is necessary to consider on a case by case basis whether it would be reasonable to disclose confidential information about an individual to the receiving State taking into account the fact that SIAC will act as a safeguard should such disclosure impact upon Safety on Return (SOR). Consideration should be given on a case by case basis as to whether the material should be anonymised (eg when sharing with medical institutions) and whether the disclosure is necessary for a legitimate aim. 2. Broad legal principles a. Any sharing of information with receiving States should comply with article 8 ECHR, any duty of confidentiality owed and the DPA. b. HMG owes a duty of confidentiality in respect of the contents of a person’s asylum claim and the fact that a person has claimed asylum and a very high level of protection is afforded by the law of confidentiality in this context. c. A duty of confidentiality is subject to an overriding public interest in disclosure. Whilst national security may provide such a public interest, we do not usually disclose the fact that a SIAC appellant has claimed asylum and this may make it difficult to establish the overriding public interest in doing so in any particular SIAC case. (However, the Secretary of State was not found to have acted unlawfully in Z and others v SSHD [2009] EWHC 261 (Admin) discussed below.) d. In SIAC proceedings we’ve taken the view that it’s helpful to share with the receiving state information regarding the individual’s involvement in terrorism. The public interest in doing so may override any duty of confidentiality and may justify an interference with article 8 ECHR. International obligations such as UNSC Resolution 1373/2001 require cooperation in this field (including the exchange of information to prevent terrorist acts) and disclosure to the receiving state arguably strengthens the value of assurances. e. The High Court has found that the Secretary of State must ensure she gives no more information to the receiving state than is strictly necessary to ensure that proper assurances are given (including biodata and membership of terrorist organisation): Z and others v SSHD [2009] EWHC 261 (Admin) para 25. f. A person’s membership of a proscribed organisation does not attract the protection of article 8 ECHR or amount to sensitive personal data for the purposes of section 2 DPA. g. It is likely that data sharing with receiving states for the purposes of SIAC deportation proceedings will benefit from the national security exemption in section 28 DPA and therefore, if necessary for the purposes of safeguarding national security, the data protection principles in Schedule 1 to that Act will not apply. h. Where the individual has placed information in the public domain it is unlikely to be protected by article 8 ECHR or any duty of confidentiality (although this will depend on the facts of the case). i. In SIAC cases it is for SIAC to determine whether it is safe to return a person to a country. SIAC therefore provides the ultimate safeguard as to whether disclosure undermines a person’s safety and satellite proceedings should not consider the question of SOR.

j.

The extent of the protection afforded by the procedural safeguard in article 8 ECHR depends on the circumstances of the case. i. In general, there is no obligation to consult persons being deported for national security reasons before passing personal information to receiving States: see Z and others v SSHD [2009] EWHC 261 (Admin) in which the High Court found there was no obligation to notify the individual of information being shared in the context of terrorism and UNSC Resolution 1373/2001 so long as objectively speaking the disclosure is necessary and reasonable (para 29). ii. But there may be an exception in relation to medical information obtained from the person’s medical records unless there is a national security reason for not consulting. (In OO the Secretary of State conceded that he should have sought representations from the appellant before disclosing medical information verbatim from a medical report with Jordanian hospitals since the individual could have been identified from that information and since it would not have undermined national security to have done so. (See permission decisions in OO v SSHD of 21 January 2008 and [2008] EWHC 1336 (Admin).)

September 2008

10_Support for Asylum Seekers and other Persons subject to Immigration Control Overview

Housing General rule:

 

not eligible for: o assistance as homeless persons or o allocation of social housing housing provided by NASS no secured/assured tenancy or protection from eviction

R (oao Morris) v Westminster City Council [2005] EWCA Civ 1184 s. 185(4) Housing Act 1996 incompatible with Article 14 to the extent that it required a dependent child of a British citizen, if both were habitually resident in the UK, to be disregarded when determining whether the British citizen had a priority need for accommodation, when that child was subject to immigration control. Appeals to the asylum support adjudicators (ASA) Non-qualification
 

against decision that applicant does not qualify for s. 95 support against decision not to provide s. 4 accommodation

Stoppage
 

against a decision to stop providing s. 95 support before that support would otherwise have come to an end against a decision not to continue to provide s. 4 accommodation

Process
    

timing powers require SoS to reconsider the matter substitute adjudicator’s decision for the decision appealed against dismiss the appeal

Outcome
 

there is not further appeal if appeal dismissed, no further application for support is to be entertained unless SoS satisfied there has been a material change in circumstances

Failed asylum seekers section 4 IAA support
  

support provided to failed asylum seekers who are temporarily prevented from leaving the UK there are currently 5186 people supported under section 4. 2865 of these are Iraqi nationals power to provide, or arrange for the provision of, facilities for the accommodation of a person if: o he was (but is no longer) an asylum-seeker, and o his claim for asylum was rejected if an asylum-seeker’s household includes a child who is under 18 and a dependant of his, he is to be treated as continuing to be an asylum seeker while the child is under 18 and he and the child remain in the UK

Eligibility for support Immigration and asylum (provision of accommodation to failed asylum seekers) regulations 2005:
 

must appear to the SoS to be destitute; and one or more of the conditions must be satisfied in relation to him, eg o taking all reasonable steps to leave the UK or place himself in a position in which he is able to leave the UK o unable to leave the UK by reason of a physical impediment to travel or for some other medical reason o unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available

Clause 43 IAN Bill
  

enables the SoS to make regulations to provide for additional needs to be met for those on section 4 support this will be achieved by direct provision of goods/services or vouchers areas regulations likely to cover: o travel to essential appointments o essential supplies for new mothers

Schedule 3 NIA 2002
  

provides that five classes of people ineligible for the types of support and welfare assistance listed mostly social welfare safety net assistance and asylum support - includes s21 NAA ECHR saving provision

Schedule 3 ineligible classes
    

those with refugee status in another EEA state and their dependants [first class] nationals of another EEA state and their dependants (second class) those that were (but are no longer) asylum seekers who fail to comply with removal directions and dependants (third class) a person in the UK in breach of immigration laws but who is not an asylum seeker (fourth class) failed asylum seeker with family and SoS has certified that in his opinion has failed without reasonable excuse to take steps to leave voluntarily (fifth class)

Fourth class This includes failed asylum seekers that are in the UK in breach of immigration laws eg illegal entrant that made in-country asylum claim Fifth class
 

pilot has been undertaken in 3 areas new clause in IAN bill intending to provide for the possible repeal, by order, of this provision

Dependent children
  

s. 122 IAA 1999 - Children that are the dependants of an asylum seeker are the responsibility of NASS R(A) - Duty to provide adequate accommodation to a destitute asylum seeking family with disabled children rests with NASS R(O) - Division of responsibility with families with an adult who has a care need and there are dependent children in the household

Unaccompanied asylum seeking children (UASCs)
   

definition of asylum seeker for support purposes s. 17 Children Act 1989 – general duty s. 20 Children Act 1989 – accommodation leaving care provisions o where a child has been looked after under s. 20 there may be a duty to provide assistance o until the child reaches 21 o in some cases for longer o rebuttable presumption that UASC will have been looked after under s. 20

Matters not being pursued

Accommodation centres o part II NIAA 2002 o accommodation of destitute asylum seekers and their dependants in accommodation centres o education Community activities o section 4(5)-(9) IAA 1999 and Regulations 4 and 5 Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 o breach of Article 4? Paragraph 7A schedule 3

11_The Role of Expert Evidence in Litigation
What is expert evidence?
  

 

opinion evidence provided by a 'professional' witness within the area of that witness’ expertise evidence will usually be in the form of an expert’s report but may be a letter or a statement expert may set out country material, an assessment of the situation in the relevant country for particular groups and/or may assess the merits of the claim based on the expert’s expertise (eg set out what is likely to happen to the appellant if returned to that country) expert should be appropriately qualified in the matter on which he is giving evidence – expertise can be based on study, training or experience when assessing the situation in the relevant country, the adjudicator/tribunal/court will consider all the relevant material (including any expert reports) and will then decide the weight to be attached to the expert evidence

Duties of the expert witness The role of the expert witness as set out the Ikarian Reefer has been adopted by the IAT (in Saidi v SSHD (24/1/01) as the correct approach to expert opinions: 1. Expert evidence presented to the court should be and should be seen to be the independent product of an expert uninfluenced as to the formal content by the exigencies of litigation. 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. 3. An expert witness in the High Court should never assume the role of advocate. 4. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from the concluded opinion. 5. An expert witness should make it clear when a particular question or issue falls outside his expertise. 6. If an expert’s opinion is not properly researched because it considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one. 7. If after exchange of reports an expert witness changes his view on a material matter such change of view should be communicated to the other side without delay and when appropriate to the court. 8. Where expert evidence refers to photographs, plans, calculations, survey reports or other similar documents, they must be provided to the opposite party at the same time as the exchange of reports.

The IAT in Slimani v SSHD (12/2/01) subsequently set out that the most important of those principles when assessing the weight to be attached to expert evidence are the need for independent assistance to the adjudicator or tribunal, the prohibition against assuming the role of an advocate and the need to specify the facts on which the opinion is based. Responding to expert evidence CIPU may be asked to respond to expert evidence at any stage of an asylum claim or appeal. A claim/appeal may stand or fall on the expert evidence, in which case CIPU’s response to the expert evidence will be vital to the Secretary of State’s case. The relevant country officer will be asked to comment on the conclusions reached by the expert. This will involve a careful reading of the expert evidence and detailed consideration of each conclusion drawn. CIPU may be asked to respond in a number of ways, eg by email, orally with counsel (conference in person or by telephone), witness statement exhibiting objective material relied upon. Approach:
  

 

check expert’s credentials, qualifications and experience can you combat the objective evidence the expert relies on? Check expert’s source material – is it out of date? check expert’s interpretation of the objective material – has he used material selectively (eg missing out unfavourable parts)/out of context/subjectively? You may need to go to the expert’s source material check use of statistics – do you agree that they support the conclusion drawn? Do your statistics back up the expert’s conclusion? does the report take account of the claimant’s/appellant’s particular circumstances or does it reach general conclusions which may not apply in the particular case because of factors individual to the claimant/appellant? NB the report may have been recycled from a similar case the report may criticise the relevant CIPU country assessment in some details – can you sustain the conclusions in the country assessment? Is the source material still current? R (On the Application of Bagdanavicius) v SSHD [2003] EWHC 854 (Admin) - Lithuania o NSA certified claim challenged by way of judicial review; SSHD had to show that it was properly certified, ie was clearly unfounded (bound to fail) o expert had years of experience in research into Soviet and post-Soviet affairs and had advised the FCO in respect of the Baltic states o SSHD dismissed the expert report as reflecting the expert’s own personal judgments on the general situation and making no contribution to the individual case

o

o o

admin court found that was an inappropriate reason for rejecting the report (that approach “was at least misguided and possibly disingenuous” and was “unsustainable”), and was not sufficient to show that an appeal to an adjudicator was bound to fail CIPU then considered the report and gave detailed comments showing that the expert’s conclusions could not be sustained in all instances admin court held that the SSHD had moved to a reasoned rejection of the expert evidence and that that conclusion was open to him. The court stated that there was no legal error in the SSHD’s eventual treatment of the expert evidence (as per CIPU’s full response)

9 February 2004

12_IND_Onward_Appeal_Rights_1
Immigration Appeals Onward Appeal Rights (Filter Mechanism)
Date of Service of AIT Determination In Country 5 days to apply and Out of Country 28 days Apply to High Court (Filter Mechanism)Appn. lodged at AIT AIT send NOR to all parties. 10 days for decision Grant (Error of Law) AIT inform all parties post/ e-mail Paper review by AIT to decide single judge, panel hearing. Inform parties Refuse AIT inform all parties iNc. form to 'opt in' with decision Onward Appeal Rights - Filter Draft v0.8

(AIT to send Totals of Refused/Allowed cases to High Court) 5 days to confirm

Applicant confirms High Court Review 'opt in' HC informs all parties if applicant has opted in within 24 hrs

Note: If applicant 'opt in' received by HC AIT send file within 24 hrs If no 'opt in' received by Day 8 (5+2) assume not applying *Fees will be paid direct to High Court

20 days

% of cases may be adjourned for further evidence.

High Court Determines Application
10 days for decision

Restore appn. under Sec.103C (2g) to appropriate court. COA informs all parties

20 days Tribunal Reconsiders Decision -oral hearing 10 days Tribunal Decision Promulgated. Separate costs order- order yes or no Inc COA appn. form if refused.

Granted HC informs all parties of decision

Refused HC informs all parties. Inc. cost order End

HC Refer application up to COA

Tribunal to decide if panel, or single review- lists case for reconsideration

.......... High Court to inform LSC if costs given in case, if not, may be further appeal on grounds of cost

10 days

Permission to Appeal COA ( via Tribunal) AIT informs other party of receipt

Directs determination set aside, administartive error, orders a rehearing. File returned to AIT hearing centre for listing.

Refer application to supervisory judicial officer on paper.

10 days for decision Refused AIT inform all parties 10 days to apply

Granted AIT informs all parties. AIT forwards file to COA.

Apply Permission to Appeal (Court of Appeal) Granted COA inform all parties Refused COA inform all parties

COA list and informs AIT and all parties

Heard at Court of Appeal (Substantive Oral Hearing

Oral application to COA for permission

Affirm the Tribunal's Decision COA informs all parties

Remit the appeal to the Tribunal COA informs all parties

Make any Decision the Tribunal could make COA informs all parties

Affirm, vary or give a section 87 direction COA informs all parties

Refused - COA infrom all parties. END

13_IND_Onward_Appeal_Rights_Panel_2
Onward Appeal Rights - Panel Hearing Draft vs 0.8

Immigration Appeals Onward Appeal Rights (Legal Panel hearings).

Working Days Date of Service of AIT Determination Day 30 In country 10 days to apply and Out of Country 28 days Directs determination set aside, administartive error, orders a rehearing. File returned to AIT hearing centre for listing. 10 days for decision Grant AIT inform all parties. AIT forwards file to COA. (Application form for COA sent with refused decision to appellant)

Day 35

Permission to Appeal COA (via Tribunal) AIT inform other party

Day 45

Refuse AIT inform all parties 10 days to apply Apply Permission to Appeal (Court of Appeal) COA informs all parties?

Day 55?

COA list and informs AIT and all parties

Granted COA informs all parties

Refused COA informs all parties

Heard at Court of Appeal (Substantive Oral Hearing)

Oral application to COA for permission

Refused - COA infrom all parties. END Make any Decision the Tribunal could make COA informs all parties

Affirm the Tribunal's Decision COA informs all parties

Remit the appeal to the Tribunal COA informs all parties

Affirm, vary or give a section 87 direction COA informs all parties

14_Article 3 of the European Convention on Human Rights
Background The rights enshrined in the European Convention on Human Rights were implemented in English law in the Human Rights Act 1998, which came into force on 2 October 2000. Article 3 of the ECHR effectively provides a further argument against removal for asylum applicants – even if an asylum applicant fails to establish refugee status within the Refugee Convention, they can argue that removal to their country of origin will result in a breach of Article 3. Therefore, it provides an alternative basis for seeking leave to remain in the UK and will be considered as an imputed claim in all asylum claims. A successful Article 3 claim will give rise to a grant of Humanitarian Protection or Discretionary Leave. The Law Article 3 provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 3 is an absolute right, ie it cannot be balanced against competing interests like some of the other ECHR rights and it applies even in times of war or other public emergency. Everyone is entitled to respect for their Article 3 rights regardless of issues weighing against them, such as maintaining effective immigration control. The paper entitled “Introduction” sets out that there is a territorial limit on the UK’s obligations under the ECHR – in general, they only arise where the alleged treatment contrary to the ECHR right will occur within the UK. As set out, the UK’s obligations under Article 3 are engaged where there is a real risk that removal would give rise to a breach of Article 3.

The extent of Article 3 Article 3 is broader in its application than the concept of ‘persecution’ under the Refugee Convention as follows:  There are no exclusions from Article 3 protection on grounds of national security or criminality  The applicant does not have to show that the harm feared is for a particular reason, eg race, religion, nationality, membership of a particular social group or political opinion  The harm feared need not have the character of “persecution” or even have the character of aggressive action necessitating international protection (eg Article 3 medical claims) The threshold for Article 3 The absolute nature of the right leads to a very high threshold. Many factors will be taken into account by a court considering whether someone faces a real risk of treatment contrary to Article 3 on return, eg the nature, seriousness and duration of the treatment, the mental and physical effects of the treatment, the age and gender of the applicant and the applicant’s state of health. In the case of Pretty v UK, the European Court of Human Rights provided the following guidance on treatment that will reach the Article 3 threshold: “As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court’s case law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3”. The Pretty guidance was adopted by the Court of Appeal in the case of Q v SSHD and the following was added: “Treatment implies something more than passivity”. The ECHR is a living instrument so types of ill treatment that fall within Article 3 may change over time as social conditions change and former practices become unacceptable (eg corporal punishment).

Torture: this is the most serious kind of Article 3 ill treatment and consists of deliberate inhuman treatment, causing very serious suffering (physical and/or mental suffering). Torture implies deliberately inflicted suffering of particular intensity and cruelty. Ill treatment that could constitute torture:  Beating suspects in a police station to extract a confession and information about political activities Inhuman treatment or punishment: less severe than torture. The threshold is still high but the treatment doesn’t have to be deliberately inflicted. Ill treatment that could constitute inhuman treatment or punishment (particularly cruel and deliberate examples may meet the threshold for torture):  Serious physical assaults  Psychological interrogation methods which fall short of torture (eg food/drink/sleep deprivation, hooding, subjecting suspect to noise, forced standing against wall)  Inhuman detention conditions  Death row phenomenon (ie the combination of circumstances to which an applicant would be exposed if sentenced to death for a capital offence – takes into account duration on death row, the conditions and the applicant’s particular circumstances, such as age and mental state)  Rape  Forced abortion  Forced sterilisation  Acts involving genital mutilation and allied practices Degrading treatment or punishment: less severe than torture. Treatment may be degrading if it arouses in the victim feelings of fear, anguish or inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. Whether treatment is degrading will depend on whether a reasonable person of the same age, sex and health would have felt degraded. Ill treatment that could constitute degrading treatment or punishment:  Severe racial discrimination (and other acute forms of discrimination) Although severe discrimination is capable of meeting the threshold for degrading treatment or punishment, the threshold is high. For example, Roma in the Czech Republic face widespread discrimination, eg in the allocation of housing, employment, education (a disproportionately high number of Roma children are transferred to schools for children with learning difficulties) and access to services. Roma may face discrimination in shops, racially-motivated violence from skinheads and name calling. However, the discrimination faced by Czech Roma is very unlikely to meet the Article 3 threshold (see the case of Hrbac cited in the Czech OGN): “The position in the Czech Republic is such that it will in our view be impossible for a Rom or anyone who has suffered as a result of discrimination against Roma to establish a well-founded fear of persecution”.

What constitutes a real risk of Article 3 treatment? The Court of Appeal held in Bagdanavicius that it is the same threshold of risk as in asylum claims, ie does the applicant have a well-founded fear of treatment contrary to Article 3 on return? This question is applied regardless of whether the receiving State is a signatory to the ECHR. As with asylum claims, when assessing the risk the caseworker will have to consider the availability of State protection (in non-State agent cases) and whether internal relocation would be an option (see separate handouts on protection and internal relocation). There will not be a real risk of Article 3 treatment on removal where the treatment will be from non-State agents and the State provides a sufficiency of protection and/or where internal relocation is a viable alternative. The test for sufficiency of protection and internal relocation in the context of Article 3 is the same as for the Refugee Convention. Standard of living cases In Ngandu (21/9/01), the IAT held that the DRC’s failure to provide adequate food, shelter and healthcare would not breach Article 3 event though the IAT accepted that the living conditions in the DRC were “appalling”. If the applicant was returned to the government-controlled area of the DRC, he would be no worse off than any other DRC citizen living there. Article 3 will not be breached simply because a person will be destitute on return and the threshold is particularly high when the harm in question has not been directly inflicted by the State. Medical cases Medical cases will only reach the threshold for Article 3 in rare and extreme circumstances. The general principle is that a person cannot avoid removal on the basis that they should continue to benefit from medical, social or other form of assistance provided. In medical cases where the claim arises essentially out of a lack of health care and resources in the country of origin (in contrast to what has been available in the UK), applicants will only be granted leave to remain in the UK where there are particular factors in the case which make it exceptionally compelling. Article 3 is only engaged in cases of this kind "where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State". In other words, where the claimant would, in effect, be in no worse position than the majority of people in his country of origin who suffer from the same condition, then a grant of leave would normally be refused.

Factors which might demonstrate exceptional circumstances include the following:  if the claimant is in the terminal stages of illness and has a short life expectancy even with treatment  if the claimant has lived in the UK for a long length of time Factors which will generally not, on their own, demonstrate exceptional circumstances include the following:  if the claimant would be unlikely to receive treatment in the country of origin or if the treatment would be less effective than that which is being received in the UK  if the claimant would not be able to pay for treatment  if the claimant has no family in the country of origin Prison conditions Whether poor prison conditions are capable of reaching the Article 3 threshold is fact specific. Relevant considerations include:  Levels of overcrowding  Solitary confinement (segregation and isolation)  Sleep deprivation, eg by constant lighting, lack of adequate sleeping facilities  Complete absence of exercise  Absence of sanitation  Absence of ventilation  Continuous surveillance  Absence of medical treatment  Malnourishment  Vermin infestations  Absence of natural light In order to reach the Article 3 threshold, conditions of detention have to reach a minimum level of severity. Several of the above would have to be present for a significant duration in order for the suffering to reach that minimum level of severity. The European Court of Human Rights in Kalashnikov v Russia [2002] held that the following conditions in Russia cumulatively constituted a breach of Article 3:  severe overcrowding (0.9-1.9m2 per prisoner whilst the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment set an approximate desirable guideline for a detention cell of 7m2 per prisoner)  insanitary environment (inadequate ventilation, confinement to overcrowded and stuffy cell for 22-23 hours per day, cell infested with pests (cockroaches and ants) without anti-infestation treatment, applicant contracted various skin diseases and fungal infections and was detained on occasion with detainees suffering from syphilis and tuberculosis, lavatory pan not separated from living area - photos showed filthy cell and toilet area with no real privacy)  detrimental effect on the applicant's health and well-being (caused considerable mental suffering - beds were shared and sleep was based on 8-hour shifts whilst the cell was lit constantly which resulted in sleep deprivation, conditions must have diminished applicant's human dignity and aroused in him such feelings as to cause humiliation and debasement)

the length of the period during which the applicant was detained in such conditions (4 years and 10 months) The Court held that the fact that there was no indication the Russian authorities positively intended to humiliate or debase the applicant could not exclude a finding that Article 3 had been breached. On the other hand, in SSHD v Fazilat [2002], the IAT held that the following conditions in Iran did not breach Article 3:  some prison facilities are notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the government – there was no real risk that the applicant in this case would be treated as if he were a political opponent  prison conditions are harsh. Some prisoners are held in solitary confinement or denied adequate food or medical care in order to force confessions – the applicant in this case was not at all likely to face ill treatment in order to force a confession The Tribunal did “not doubt that prison conditions in Iran are far from ideal … *and+ may not measure up to what is expected in this country … Recognition has to be had to the situation in individual countries and to the standards that are accepted, and expected, in those countries. Of course in relation to Article 3, there is a line below which the treatment cannot sink … *but+ the threshold has to be a high one because, otherwise, it would be, as one recognises, quite impossible for any country to return to a non-signatory an individual who faces prosecution, rather than any sort of persecution.” Consideration of Article 3 by caseworkers Caseworkers will consider whether the alleged treatment on return is capable of breaching Article 3 in tandem with the asylum claim, ie that it is capable of amounting to persecution. Caseworkers may consider the following:  Whether the treatment clearly falls short of the Article 3 threshold  Whether, for alleged ill-treatment by non-State agents, the State provides a sufficiency of protection in respect of that type of treatment  The availability of internal relocation When considering sufficiency of protection and internal relocation, caseworkers will rely heavily on the information and the steer in the relevant OGN.

Approach to take to Article 3 in the OGN Article 3 will be relevant for all the main types of claim. For each of the main types of claim, the OGN should consider the type of claim caseworkers should expect to see (which will include the type of victim and the type of ill treatment alleged) and then consider whether the country information allows us to defend claims of that type on the basis that there is a general sufficiency of protection provided by the authorities in respect of that type of treatment. The viability of internal relocation should also be considered. For countries where prison conditions are particularly harsh, the OGN should provide a steer on whether they are capable of reaching the Article 3 threshold (taking the above factors into account). Where, for example, the US State Dept sets out that prison conditions in a particular country are life threatening, the reasons why should be considered. Where a country is taking active steps to improve prison conditions, that should be set out along with details of progress made. Where prison conditions in a particular country are notably worse in particular detention facilities, that should also be set out. It cannot be up to individual caseworkers to determine whether prison conditions in a particular country will amount to a breach of Article 3. This is for the CIPU country officer, who should provide guidance on this (where they are able to do so from the available country information). To leave such decisions to individual caseworkers would result in inconsistency in decision making. Therefore, the following paragraph in an OGN would be unhelpful: “Caseworkers may wish to consider whether prison conditions for detainees are such that they contravene Article 3 of the ECHR”. The guidance in the OGN should set out whether prison conditions meet the Article 3 threshold – if this will depend on particular factors, such as the type of detention facility, that should be set out in the OGN. If the steer is that the Article 3 threshold is met, the OGN should set out the cumulative factors that have led to that conclusion. If prison conditions are particularly harsh and are likely to meet the Article 3 threshold for particular applicants only (eg those in a particular facilities or those convicted of particular types of crime), that should also be in the OGN. Since the Article 3 threshold for medical cases is particularly high, the OGNs do not have to go into great detail about different available treatments. However, the OGN should cover  Whether there is free healthcare and, if so, whether there are any key (ie life saving) facilities that would not be available, eg particular surgical procedures, cancer treatment, kidney dialysis, anti-retroviral therapy  Whether the gaps in free healthcare are filled by private healthcare  The availability of mental health care

4.12.03

15_Section 25 of the Immigration and Asylum Act 1999
Introduction This note explains section 25 of the Immigration and Asylum Act 1999. The Law Section 25 is concerned with the provision of immigration facilities at ports and who should pay for those facilities. Section 25(1) provides that the person responsible for the management of a control port (that is, a port where a control area has been designated under paragraph 26(3) Schedule 2 to the 1971 Act) must provide the Secretary of State free of charge with such facilities as the Secretary of State may direct are necessary for, or in connection with, the operation of immigration control there. Before giving such a direction, the Secretary of State must consult anyone likely to be affected (section 25 (2)). The Secretary of State must give a copy of the direction to the port manager (section 25(3)). Section 25(4) sects out the sanctions available if the port manager persistently fails to comply with all or part of a direction. If the port is a control port which is not a port of entry, the Secretary of State may revoke any approval given to the port under paragraph 26(1) Schedule 2 to the 1971 Act. If the control port is designated as a port of entry, that designation may be revoked. A direction is enforceable on an application by the Secretary of State by injunction in the county court, or by order under the Court of Session Act 1988 in Scotland (Section 25(5)). The key issue is the definition of “facilities” which must be provided free of charge by the port manager. Section 25(7) provides that “facilities” means “accommodation, facilities, equipment, and services of a class or description specified in an Order made by the Secretary of State”. An Order has been made specifying what “facilities” means (and so what the port manager must pay for). The Order is the Immigration Control (Provision of Facilities at Ports) Order 2003, SI 2003/612. The Order came into force on 1 April 2003. Article 3 of the Order defines facilities. Facilities explicitly includes the following accommodation: (1) (2) (3) (4) (5) an immigration control front or fronts (i.e. the line of desks or facilities within the control area which marks the place where immigration control is undertaken); a room or rooms at the immigration control front for the purpose of enabling immigration officers to view passenger and for other immigration purposes at the control front; interview rooms; rooms for photography, fingerprints, and for establishing identity; rooms for checking the authenticity of documents;

1

(6) (7) (8)

rooms for accommodating IT server equipment; rooms for detention purposes; waiting areas for passengers being examined.

“Facilities” also includes “utilities” and “cleaning services” for the accommodation. “Utilities” means “the provision of services such as lighting, heating, ventilation and water supply”.
Date

30 July 2007

2

16_SUMMARY OF BIOMETRICS1 POWERS IN IMMIGRATION ACTS Section 141 to 144 Immigration and Asylum Act 1999. Section 126 Nationality, Immigration and Asylum Act 2002. Power to take fingerprints from certain high risk categories including asylumseekers. Can be extended to other biometrics by affirmative regulations. Power by affirmative Regulations, effectively, to take biometrics from those who make an immigration application (application for entry clearance, leave to enter, leave to remain, to vary leave) or entrants (those entering or seeking to enter). Regulations made under s126 which enable an authorised person to require an entry clearance applicant, or a certain type of leave to enter applicant, to provide fingerprints and a photograph of his face. Power for secretary of state to operate a voluntary scheme by which biometrics are collected and retained in connection with entry to the UK. Current scheme is IRIS. Residence permits to be issued as a stand alone document. Power to take facial image and two fingerprints from third country nationals Biometric passports – issued since March 2006 by IPS. Power to take photographs, fingerprints, or otherwise measure a person detained under schedule 2 for the purpose of identifying. Must be destroyed once the person has been identified. From 31.8.2006 - power for an immigration officer to verify fingerprints as part of his Schedule 2 examination where a person produces a biometric visa or passport. Power for secretary of state to make regulations requiring a person to apply for a biometric immigration document, and to enrol his biometrics when he does so. Power for Secretary of State to require a person to provide fingerprints and photographs or submit to a process for the recording of information about physical external characteristics.

Immigration (Provision of Physical Data) Regulations 2006.

Section 127 Nationality, Immigration and Asylum Act 2002.

European Regulation 1030/2002 (amended in 2008) on uniform format for residence permits for third country nationals Royal Prerogative for passports Paragraph 18(2) Schedule 2 of the Immigration Act 1971

Paragraph 4(5) of Schedule 2 to the Immigration Act 1971 Section 5 to 15 UK Borders Act 2007

s. 35 (2)(c) Asylum Immigration (Treatment of Claimants) Act 2004

Date

6 May 2010

Biometric information is generally defined as information about a person’s external physical characteristics, including his fingerprints and features of the eye.
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Guidance Note 17_BIOMETRIC IMMIGRATION DOCUMENTS

Relevant Legislation     The UK Borders Act 2007 (“the 2007 Act”)1. Immigration (Biometric Registration) Regulations 2008. Immigration (Biometric Registration) (Amendment) Regulations 2008. EC Regulation 1030/2002 (as amended by EC No 380/2008)).

Background 1. The UK Borders Act 2007 (“the 2007 Act”) provides a framework for issuing a secure biometric card to foreign nationals who are subject to immigration control2. Under the legislation this is technically described as a “biometric immigration document” (a BID). UKBA prefer the label: „identity card for foreign nationals‟ (or ICFN). The provisions of the 2007 Act give the Secretary of State the power to make regulations to create the scheme for issuing the document.

The BID Regime 2. It is helpful to consider the foreign nationals in two categories: (a) Those who apply for leave to remain in country. The card will be the way in which leave is granted in writing (as required by section 4 of the Immigration Act 19713). As such it will be the thing which replaces the current vignette, as well as a card which can establish immigration status and identity. (b) Those who already have leave (for example, indefinite leave or fall within one of the prescribed categories) who will in time be required to upgrade their existing immigration status documents to the secure card. It will be a freestanding card to confirm immigration status and identity. 3. The basic policy idea is to systematically replace less secure documents which evidence leave (for example, letters, stamps, and vignettes). BIDs will be rolled out incrementally and according to prioritised categorises. The BID contains a chip with encrypted information about the person‟s immigration status and identity and including biometric information (facial image and fingerprints). It will be of a standard format as required by EC law. 4

4.

1 2

Sections 5 to 15. Section 5 to 15. 3 Subject to some exceptions. 4 EC 1030/2002 amended by 380/2008.

1

Guidance Note

5.

There are associated powers for an authorised person5 to collect information where a person applies for the document, including biometric information – for instance fingerprints, facial image. There are similar, but not identical, safeguards for children as with section 141 of the 1999 Act. 6 Note, these powers only allow biometrics to be taken when a person applies for the identity card – they do not provide a free-standing power to take biometrics separate from the application for the card. The regulations must provide for how the biometric information is to be used – which can include use for non-immigration purposes (for instance, for the prevention, investigation or prosecution of crime). They must provide for the destruction of the biometric information held by the Secretary of State in certain circumstances. Unlike the previous powers, there is no requirement to destroy biometrics after 10 years. The requirement is to destroy when the Secretary of State thinks the information is no longer needed for one of the specified purposes. However, the if the person shows they have a right of abode, then the biometrics must be destroyed as soon as reasonably practicable. Regulations may require a person to produce the card in certain situations, for example, where they apply for a job or social benefits provided immigration status is a relevant consideration. The regulations may also require the holder to provide information to verify he is the rightful holder. This could be, for example, his fingerprints, so they can be checked against the fingerprint information in the chip and/or against the IAFS database. The cards issued under the UK Borders Act 2007 are to be distinguished from the ID cards which will be issued under the Identity Cards Act 2006. The Identity Cards Act creates a more extensive framework for creating a National Identity Register (NIR) and issuing ID cards. It is not limited to those subject to immigration control. It has wider purposes than the immigration/nationality focused purposes of the UK Borders Act provisions. The documents issued under the UK Borders Act 2007 will be brought within the scheme of the Identity Cards Act in due course. As such, the cards under the UK Borders Act are the first stage in the Government‟s longer term identity strategy.

6.

7.

8.

The statutory framework 9. The Immigration (Biometric Registration) (Pilot) Regulations 2008 7 made under the UK Borders Act came into force in April 2008. These essentially piloted BIDs for those applying for leave to remain in certain student categories and spouse/partner categories, and in doing so provide their fingerprints and photograph. These regulations were fairly limited in scope as they were designed to test the biometrics technology and processes.

5

Prints may only be taken by an immigration officer, constable, prison officer or other person authorised by the Secretary of State.. 6 Comparable provision to section 141(12) is not required by the legislation – this was omitted for operational reasons and because it was not thought necessary to safeguard children. 7 2008/1183.

2

Guidance Note 10. The Immigration (Biometric Registration) Regulations 2008 made under the UK Borders Act came into force on 25 November 2008. The first amendment to these Regulations were made in November 2009 (the Immigration (Biometric Registration) (Amendment) Regulations 2008). The second set of Amendment regulations have been laid this month (November 2009) and will come into force in January 2010. 11. The Regulations provide for the roll out of biometric identity cards to foreign nationals staying in the UK for more than 6 months and falling in to one of the categories set out in those Regulations8. The roll-out to all categories of individuals subject to immigration control and who will be in the UK in excess of six months is to be completed within the next 3 years. 12. See also the Immigration (Biometric Registration) (Civil Penalty Code of Practice) Order 2008 which commences the Code governing the imposition of sanctions for failure to comply with the Regulations. The next set of regulations is planned for November 2009. The next steps in the roll out of biometric identity documents are set out in the Government‟s roll out strategy: http://www.bia.homeoffice.gov.uk/sitecontent/documents/managingourborders/c ompulsoryidcards/ 13. The Regulations will allow fingerprints and a photograph to be taken of a person who is applying for leave to remain in one of these categories under the Immigration Rules as part of their application for the identity card. 14. Regulation 21 provides that the holder must produce the card in various circumstances including:    when he is examined by an immigration officer at port or in the course of his journey to the UK; when he is examined by the Secretary of State (examination prior of grant of leave to enter to asylum-seekers and those to be granted leave outside the rules)9; when he makes an application for leave to remain.

15. When the holder produces the cards, he must provide fingerprints or a photograph to verify against prints/photo provided when he applied for the card. The comparative information can be checked against the information contained in the chip on the card, and also against the IAFS database. It cannot be retained.

8 9

Regulation 4, Immigration (Biometric Registration) (Amendment) Regulations 2008 Under the Immigration (Leave to Enter) Order 2001.

3

Guidance Note BID Civil Penalty Regime 16. The Act provides a scheme of sanctions where a person fails to comply with requirements of the Regulations, for example, fails to apply for the document or fails to provide his biometrics. The sanctions include immigration related sanctions: refusal of an application for leave or curtailment/cancellation of leave. Alternatively a civil penalty may be imposed. 02/11/2009

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18_IND and RACE DISCRIMINATION LAW
CONTENTS page INTRODUCTION THE LEGAL FRAMEWORK Race Relations Act 1976 The basic concept and the prohibition on discrimination What amounts to discrimination? 2 2 2 2 3 3 5 6 6 7 7 8 9 11 11 12 12 12 13 14 15 15 16 20

Direct discrimination Indirect discrimination The importance of differentiating What is not discrimination
Exceptions to the prohibition on discrimination

Section 19D
The need for Ministerial involvement The need for evidence to support discrimination Process and substance discrimination Monitoring the section 19D exception

Other exceptions
Complaints

Bringing a complaint Proving discrimination RRA 1976 questionnaires
General statutory duty Public law Article 14 of the ECHR OBTAINING ADVICE ON RACE DISCRIMINATION ISSUES

1

INTRODUCTION 1. A large amount of the work of IND involves processing individuals on the basis of their nationality. The nature of this work means that IND needs to have a firm understanding of what does and what does not amount to unlawful race discrimination. This note summarises the relevant legal framework and discusses some relevant policy issues where appropriate. It is not meant to be comprehensive but it is hoped that it will assist with future policy development and the formulation of internal procedures on race relations issues. Advice should be sought wherever there is any doubt, and information on how to obtain advice on race discrimination issues can be found at the end of this note. THE LEGAL FRAMEWORK 2. The legal framework when considering questions of race discrimination can be broken down into three areas which will be address in turn in the following paragraphs; (i) (ii) (iii) the Race Relations Act 1976 (as amended, for example by the Race Relations (Amendment) Act 2000); public law; and Article 14 of the European Convention on Human Rights („ECHR‟).

Race Relations Act 1976 The basic concept and the prohibition on discrimination 3. The underlying concept of the Race Relations Act 1976 („RRA 1976‟) is that individuals of all racial groups are entitled to be treated equally. The law requires each person to be treated as an individual and not as a member of a group. An individual should not be assumed to hold certain characteristics because he belongs to a particular group, even if most members of the group do indeed have such characteristics (a process known as stereotyping). 4. The starting point is that section 19B(1) of the RRA 1976 makes it unlawful for a public authority in carrying out its functions to do any act which constitutes discrimination. “Public authority” includes IND. Section 27(1A) of the RRA 1976 extends the prohibition on discrimination in section 19B to acts done outside the UK in relation to granting entry clearance.

2

What amounts to discrimination? 5. Section 19B prohibits discrimination. “Discrimination” means (i) racial discrimination, which is defined in section 1, and (ii) victimisation, which is defined in section 2. Victimisation is less relevant in the context of the operation of the immigration control; it is more applicable in an employment context where a person is treated less favourably as a result of making a complaint under the RRA 1976. In addition to this, section 3A defines harassment which is now a free-standing complaint in certain instances rather than an aspect of racial discrimination. Again, though, harassment is less relevant in the context of the operation of the immigration control. Therefore, this note will not deal with victimisation or harassment but will instead focus on racial discrimination, of which there are two types under the RRA 1976 – commonly referred to as direct discrimination and indirect discrimination.

Direct discrimination
6. Direct discrimination is defined in section 1(1)(a) which provides that a person discriminates against another person (X) if on racial grounds he treats X less favourably than he treats or would treat other persons. The essence of direct discrimination is therefore less favourable treatment on racial grounds. 7. A complainant must show that he has been treated less favourably than an actual or hypothetical comparator of a different racial group. Section 3(4) says that a comparison of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. Examples of less favourable treatment include taking substantially longer to decide a claim, asking several additional questions of an entrant and charging a greater fee in respect of an application. 8. “Racial grounds” is defined in section 3 to mean “colour, race, nationality or ethnic or national origins”. Nationality includes citizenship. Nationality and national origins have different meanings; for instance, English and Scottish people have different national origins but the same nationality. As regards ethnic origins, an ethnic group must have a long, shared history whose memory it keeps alive and which distinguishes it from other groups and cultural traditions of its own. Sikhs, Jews and Roma have been held by the courts to be ethnic groups, but the courts have said that Rastafarians are not.

3

9. Direct discrimination does not require an intention to discriminate on the part of the alleged discriminator. This is apparent from the case of European Roma Rights Centre v Immigration Officer at Prague Airport. That case concerned an operation set up at Prague airport whereby immigration officers were stationed in Prague and were permitted to give or refuse leave to enter to passengers before they boarded aircraft for the UK. The operation was set up in response to an influx of asylum-seekers from the Czech Republic, the overwhelming majority of who were Roma. The operation was judicially reviewed; one of the arguments being that the operation amounted to direct discrimination against Roma. The House of Lords found that immigration officers had discriminated against Roma who were seeking to travel from Prague to the UK by treating them less favourably on racial grounds. The immigration officers had treated Roma, because they were Roma, more sceptically than they had treated non-Roma. The evidence showed that Roma were 400 times more likely to be refused leave to enter than non-Roma. The court commented that the objective of the operation created a high risk that immigration officers would, consciously or unconsciously, treat Roma more sceptically and that clear instructions should have been in place to ensure all would-be passengers were treated in the same way. So if a person acts on racial grounds, the reason why he does so is irrelevant (and the absence of an intention to discriminate does not automatically mean that there is no direct discrimination). The test is an objective one; would the person have received the same treatment but for his colour, race, nationality or ethnic or national origins? Further, colour, race, nationality etc. need not be the only ground for the acts complained of; it is sufficient if it is a substantial and effective cause of the discriminator‟s actions.

Indirect discrimination
10. The test for indirect discrimination was amended by the Race Relations Act 1976 (Amendment) Regulations 2003 which were introduced to implement the provisions of the EC Race Directive (2000/43/EC). This has slightly complicated the legal position as regards indirect discrimination in that the test is different depending on what the alleged ground of discrimination is and the field in which the alleged discrimination has occurred. In respect of the racial grounds of nationality and colour (and in respect of the racial grounds of race and ethnic or national origins in several fields) the test is set out in section 1(1)(b). This provides that a person discriminates against another person (Y) if he applies to Y a requirement or condition which he applies or would apply equally to persons not of the same racial group as Y but – (i) which is such that the proportion of persons of the same racial group as Y who can comply with it is considerably smaller that the proportion of persons not of that racial group who can comply with it; and (ii) (iii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of Y; and which is to the detriment of Y because he cannot comply with it.

4

11. Indirect discrimination is therefore concerned with requirements or conditions which have the effect, though not the intention, of discriminating against a particular racial group. The concept came from the US case of Griggs v Duke Power Company. In that case, the Duke Power Company required job applicants and existing employees who wished to be promoted to pass an intelligence test or have attended high school. This condition disqualified black workers at a much higher rate than white workers. The condition was not significantly related to successful job performance. imposition of the condition was unlawful. 12. Indirect discrimination is complex, and the courts have struggled with the concept. In particular, they have had difficulty defining exactly what a “condition or requirement” is and deciding what is meant by “considerably smaller”. The accepted definition of “justifiable” was set out by the European Court of Justice in Bilka-Kaufhaus GmbH v Weber von Hartz, where it was said that the relevant questions for the court are; (i) is the requirement or condition imposed other than in order to discriminate on racial grounds? (ii) do the means selected to achieve the chosen aim correspond to a real need? (iii) are they appropriate to achieve that aim? and (iv) are they necessary to achieve that aim? 13. The amended version of the test for indirect discrimination, which applies in respect of the racial grounds of race and ethnic or national origins in several fields (e.g. employment and health care) is set out in section 1A. It is slightly confusing that there should now be two different tests for indirect discrimination. They largely overlap but the Race Relations Act 1976 (Amendment) Regulations 2003 have introduced, in section 1A, the European law concepts of “proportionality” and “legitimate aim”. The US Supreme Court ruled that the

The importance of differentiating
14. It is important to identify whether a proposed operation or policy amounts to direct or indirect discrimination because indirect discrimination can be justified (see above), and if justified is not unlawful, whereas direct discrimination can never be justified and is always unlawful unless one of the specific exceptions in the RRA 1976 apply.

5

What is not discrimination
15. Before looking at those exceptions, it is perhaps worth giving some examples of cases where there is no direct discrimination. The following are examples; (i) (ii) (iii) (iv) Additional scrutiny of a particular application where documentation presented by the applicant prompts the additional enquiries. More rigorous scrutiny of all applications under a certain category of the Immigration Rules, irrespective of nationality. More rigorous scrutiny of one in ten applications under a certain category of the Immigration Rules, irrespective of nationality. Additional scrutiny of all passengers on a flight or vessel where it is the flight or vessel which is under surveillance.

Exceptions to the prohibition on discrimination

Section 19D
16. Of most relevance to IND is the exception in section 19D of the RRA 1976. Section 19D says that section 19B (the prohibition on discrimination discussed above) does not make it unlawful for a Minister of the Crown acting personally or another person acting in accordance with a relevant authorisation to discriminate against another on grounds of nationality or ethnic or national origins in carrying out immigration functions. A relevant authorisation means a requirement imposed or express authorisation given(i) (ii) with respect to a particular case or class of case, by a Minister of the Crown acting personally; with respect to a particular class of case – (a) by any of the enactments mentioned in section 19D(5) (these are (1) the Immigration Acts, except sections 28A to 28K of the Immigration Act 1971 and section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, (2) the Special Immigration Appeals Commission Act 1997, (3) provision made under section 2(2) of the European Communities Act 1972 which relates to immigration and asylum, and (4) any provision of Community law which relates to immigration or asylum), or (b) by any instrument made under or by virtue of any of those enactments.

6

17. There are several things to note about the ambit of the exception in section 19D. First, discrimination on the basis of race or colour can never be authorised. Only discrimination on the grounds of nationality or ethnic or national origins can be authorised under section 19D. Second, “immigration functions” are IND‟s statutory functions and don‟t cover things like employment. Third, the exception does not apply to acts carried out by the Immigration Service in respect of the investigation or prosecution of criminal offences. The effect of this is to place the Immigration Service in the same position as the police in respect of the investigation and prosecution of offences. 18. In the past, section 19D Ministerial authorisations have only been obtained where the policy or operation proposed has sought to directly discriminate on the basis of nationality or ethnic or national origin. Authorisations have not been sought where what is proposed amounts to indirect discrimination. This is because, as explained above, a policy or operation which indirectly discriminates will not be unlawful under the RRA 1976 if it can be justified irrespective of racial grounds. The need for Ministerial involvement 19. The first Ministerial authorisation to be made under section 19D was challenged successfully by way of judicial review in the case of R (Tamil Information Centre) v SSHD. The successful challenge was to the main ports authorisation which allowed immigration officers to subject passengers of certain nationalities to more rigorous scrutiny when examining them under paragraph 2 of Schedule 2 to the Immigration Act 1971. The authorisation enabled an immigration officer to subject a passenger to more rigorous scrutiny by reason of the passenger‟s nationality if one of two conditions were met. The first condition was that there was statistical evidence showing a pattern or trend of breach of the immigration laws by persons of that nationality. The second condition was that there was specific intelligence or information which suggested that a significant number of persons of that nationality had breached or would attempt to breach the immigration laws. The authorisation was challenged on the basis that it delegated the task of deciding who to discriminate against to the immigration officer and the statute required the Minister to be more closely in control. Forbes J. said; “In the present case, as it seems to me, although he has given some widely defined criteria for the identification of appropriate cases or classes of case, the Secretary of State has delegated the essential task of actually identifying and defining any such case or class of case entirely to the decision-making of immigration officials and, what is more, by reference to their standards and/or thresholds rather than his own. In my view, this approach is clearly ultra vires section 19D of the 1976 Act, as amended. [A] licence to discriminate, such as that envisaged by section 19D, can be expected to be subject to strict control and … in the present case, Parliament has made it clear by the express terms of the section that the necessary control is to be by the democratic process, namely by every essential aspect of the power being clearly exercised personally by a minister accountable to Parliament.” 7

20. As a result of this judgment the main ports authorisation was amended and the process changed so that the Minister now personally approves on a monthly basis the list of nationalities to whom the authorisation applies. The authorisation itself lays down the criteria for including nationalities on the list, but the actual statistics are considered by the Minister monthly. As a consequence of the judgment in this case, care has been taken when drafting subsequent authorisations to ensure that there is high level of Ministerial involvement and that the decision to discriminate is not over-delegated. The need for evidence to support discrimination 21. Where IND is contemplating discriminating against a specific group on the basis of nationality or ethnic or national origin the first question to address is why IND wishes to select that particular group for less favourable treatment. There must be good reason for the differential treatment that usually, if targeted at a category believed to be abusive, is based on statistics or intelligence. The evidence should demonstrate that there is a need for differential treatment of a particular group in comparison to other groups in the same position. Therefore, evidence should be as comparative as possible. If IND wanted to target a certain nationality, for example Kenyans, then the production of evidence which only concentrated on Kenyans would not be useful in establishing why Kenyans required differential treatment. If IND could show that Kenyans were by far the worst offenders in terms of abuse in certain categories compared with other nationalities then this would be evidence capable of supporting a section 19D authorisation and minimising the risk of challenge. 22. If there is no evidence which justifies the proposed policy or operation then the Minister, if he makes a section 19D authorisation, will be at risk of acting in breach of the public law principles set out in paragraphs 35 and 36 below and in breach of the ECHR, and the making of the authorisation may be unlawful. This is a different situation from that where evidence to justify the proposed policy or operation does exist but is not as comprehensive or as strong as would be liked. In that kind of case, the making of the authorisation would not be unlawful per se, but the authorisation would be susceptible to successful legal challenge. 23. It may be useful to look at two examples of where less favourable treatment on racial grounds has been mooted and why it was decided that there was or was not sufficient evidence to support a section 19D authorisation in these cases.

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24. First, one past proposal was to subject to more rigorous scrutiny applications to switch into student categories and applications for extension of stay as a student from four specific nationalities that were considered abusive. The evidence that was submitted in support of the proposal was the most recent monthly nationality risk assessment prepared by INDIS. However, the INDIS assessment did not form an evidential basis for the proposed student exercise because it only recorded “refused extension/settlement” decisions per nationality and not the different categories those decisions were made under. In any event, the four proposed nationalities were not the worse offenders in the “refused extension/settlement” category. In order to support an authorisation, evidence was required that the four nationalities that had been selected represented the worst abusers of the rules on students. This shows that the evidence put forward to support a discriminatory policy or operation needs to be comparative and focused on the relevant category. This will ensure that any discrimination is targeted and proportionate to the aim of reduction of abuse. What would have been useful in the student example was attendance records for those here in student categories or evidence of illegal working by students or specific intelligence. 25. Second, a successful appeal on race discrimination grounds against the refusal of entry clearance to a Bangladeshi working holiday-maker applicant raised the issue of whether UKvisas subjected certain nationalities to different procedures when applying in the same category. The current ports authorisation was intended to apply only to immigration officers examining persons under paragraph 2 of Schedule 2 to the Immigration Act 1971, and not also to entry clearance officers. UKvisas is looking into what differential treatment it requires and why. The question has arisen as to why the format of the current ports authorisation cannot be extended to the actions of entry clearance officers when considering applications for entry clearance. The answer is that it may be able to but it depends on what UKvisas wants to do. If UKvisas wants to treat all applications for entry clearance from a specific nationality in a less favourable way then it may be able to rely on the current risk assessment, subject to further consideration as to whether the statistics provide a proper basis for that treatment. However, if UKvisas wishes only to treat those in certain categories (e.g. working holiday-makers) in a less favourable way, then it will need more targeted evidence to support that.

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Process and substance discrimination

26. In the main, the section 19D authorisations which have been made to date have enabled IND to discriminate by way of process. For example, the main ports authorisation discussed above allows immigration officers to examine passengers of certain nationalities more rigorously than others. The less favourable treatment being authorised is more rigorous examination (e.g. a longer interview with more questions). Immigration officers still have to apply the Immigration Rules at the end of the examination and leave to enter or remain is given or refused on the basis of the Rules and not on the basis of a racial ground. This is process discrimination and perceived to be a less invidious form of discrimination than substance discrimination. Substance discrimination would be, for instance, where an individual was refused leave to enter or remain solely on the basis of his nationality. Process discrimination is more amenable to justification than substance discrimination.

Monitoring the section 19D exception 27. One final point on section 19D; the section 19D exception is scrutinised by an independent monitor appointed by the Secretary of State under section 19E. The monitor reports annually to the Secretary of State and a copy of the report is laid before Parliament.

Other exceptions
28. Part VI of the RRA 1976 contains various other exceptions. Amongst these is section 42 which provides an exception for acts done for the purpose of safeguarding national security, provided the doing of the act was justified by that purpose. Section 41 also provides an exception for, amongst others, acts done in pursuance of any enactment or any instrument made under any enactment by a Minister of the Crown or in order to comply with any condition or requirement imposed by a Minister of the Crown by virtue of any enactment.

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Complaints

Brining a complaint
29. There are two ways in which a person who believes IND has discriminated against him can seek redress – (i) in the county (or, in Scotland, sheriff) court, and (ii) in the context of an appeal under the Immigration Acts (e.g. before the AIT). However, section 57A of the RRA 1976 provides that proceedings cannot be brought in the county/sheriff court if – (i) the act complained of was done in the taking by IND of a decision relating to the entitlement of the complainant to enter or remain in the UK and the complainant has raised or could raise the race discrimination issue in an appeal under the Immigration Acts which is pending or could be brought; or (iii) there has been a finding in an appeal under the Immigration Acts that the act complained of did not amount to unlawful discrimination. 30. Where there has been a finding in the context of an appeal under the Immigration Acts of unlawful racial discrimination a complainant may then bring a claim in the county/sheriff court for damages and the court will not go behind the previous finding of discrimination. In general, the county/sheriff court procedure should be used by people who are satisfied with an immigration/asylum decision but wish to complain about the way they were treated. Proceedings in the county/sheriff court must be brought within six months of the act complained of. Damages in respect of unlawful discrimination may include compensation for injury to feelings and personal injury (including physical and psychiatric injury). A claim alleging racial discrimination brought by way of judicial review will be unusual because judicial review is not an appropriate forum for the resolution of factual issues. However, where the challenge is to the institution of a policy or practice that is alleged to be discriminatory then a challenge by way of judicial review can be made (e.g. the case concerning the operation at Prague Airport referred to above at paragraph 9).

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Proving discrimination
31. It is for the complainant to prove on the balance of probabilities that that he has been unlawfully discriminated against. However, the courts have pointed out in numerous cases that it will be unusual to find direct evidence of racial discrimination. Therefore, in relation to direct discrimination, the courts have said that once the complainant has proven less favourable treatment, it is for the alleged discriminator to provide an explanation. If there is no satisfactory explanation it is legitimate to infer that the less favourable treatment is on racial grounds. In relation to indirect discrimination, once the claimant has proven that a requirement or condition impacts disparately on him as a member of a particular racial group, and that it is to his detriment because he cannot comply with it, it is for the alleged discriminator to prove that its imposition is justifiable irrespective of racial grounds. This principle, established by case law, has now been formalised in respect of proceedings in the county/sheriff court concerning discrimination on the basis of race and ethnic or national origins (but not nationality and colour) in certain fields by the Race Relations Act 1976 (Amendment) Regulations 2003, which inserted a new section 57ZA into the RRA 1976. Section 57ZA provides that once the complainant proves facts from which the court could conclude in the absence of an adequate explanation that the alleged discriminator has committed an act of discrimination the court shall uphold the claim unless the alleged discriminator proves that he did not commit that act. 32. This all shows the importance of IND keeping statistics and monitoring operations and policies so that it can produce evidence if challenged. In the Prague Airport case (see paragraph 9 above) for instance, the complainants produced evidence which suggested that a person of Roma ethnicity was 400 times more likely to be refused leave to enter at Prague Airport than a person of non-Roma ethnicity. IND was not able to produce any evidence to contradict this, as IND was not monitoring the ethnic origin of those refused leave to enter at Prague Airport or subjected to additional questioning. This highlights the importance of monitoring operations and keeping statistics, so that IND is in a better position to defend race discrimination challenges. Whilst the House of Lords judgment does not go so far as to assert a positive duty on IND to monitor, it does suggest that in refuting allegations of discrimination IND may be hampered by the fact that such statistics are not available.

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RRA 1976 questionnaires
33. In relation to complaints, it is also worth bearing in mind section 65 of the RRA 1976. This obliges the Secretary of State to prescribe forms (i.e. questionnaires and answer sheets) to help a person who considers he may have been unlawfully discriminated against to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective way. Forms have been prescribed under this section. Questions asked in, and replies given in response to, a section 65 questionnaire are admissible in evidence in any subsequent proceedings. If it appears to the court that a person who received a questionnaire deliberately, and without reasonable excuse, omitted to reply within a reasonable period (or eight weeks in cases where the alleged discrimination is on the grounds of race or ethnic or national origins) or that his reply is evasive or equivocal, the court may draw any inference from that fact that it considers just and equitable to draw, including an inference that he committed an unlawful act. This is subject only to a limited exception regarding the carrying out of criminal investigations. Therefore, it is important if a member of IND is served with a section 65 questionnaire that it is responded to as quickly and as fully as possible, in conjunction with the unit responsible for race policy (Social Policy Unit) to ensure a consistent line is taken on race discrimination issues. General statutory duty 34. One other provision of the RRA 1976 to mention is section 71(1). This imposes a duty on specified public authorities, in carrying out their functions, to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. In relation to the carrying out of its immigration and nationality functions, IND is exempt from the duty to promote equality of opportunity between persons of different racial groups, but is subject to the rest of the duty. This exemption reflects the unique nature of IND‟s business which involves legitimately denying opportunity to some which IND provides to others in relation to the control of immigration. By virtue of section 71(2), the Secretary of State has the power to impose by order such additional duties as he thinks appropriate for the purpose of ensuring better performance of the section 71(1) general duty. An order has been made using this power which requires specified public authorities, including the Home Office, to produce (and review at least every three years) a Race Equality Scheme showing how they intend to fulfil their duties under the section. The Home Office has produced such a scheme. The scheme covers issues such as procedures for assessing the impact of new policy proposals, monitoring arrangements, staff training arrangements and complaints procedures.

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Public Law 35. Overarching the more detailed anti-discrimination provisions of the RRA 1976 are the basic tenets of public law, and in particular the over-riding obligation on the Secretary of State to act reasonably (usefully summarised in the Cabinet Office publication “The Judge Over Your Shoulder”, available at http://www.tsol.gov.uk/Publications/judge.pdf). In summary, decisions should be made according to the following logical principles (identified in the case of Associated Provincial Picture Houses v Wednesbury Corporation); (i) irrelevant considerations should not be taken into account, (ii) conversely, all relevant considerations should be taken into account, and (iii) the decision should be within the range of responses open to a reasonable decision-maker (i.e. it should not be irrational). So, for example, where a policy amounts to less favourable treatment on racial grounds, even though it will not be unlawful under the RRA 1976 if it is the subject of a section 19D authorisation, it could still be challenged successfully on public law reasonableness grounds if, on the evidence available, the decision to implement the policy was beyond the range of responses open to a reasonable decision-maker. 36. Although the Secretary of State has a wide margin of discretion that does not mean that all policy decisions are reasonable. Policy should, where possible, be evidence-based and be an appropriate and proportionate means of addressing the issue. For example, if the justification for a policy is said to be evidence of particular abuse, but there is no such evidence, or the policy is not aimed at that abuse, or is unlikely to address it, or is disproportionate in effect, then the policy is unlikely to be reasonable. It is therefore important that where there is an evidence-based need for a policy that the evidence is available to support that change before the change is made. Where a policy is intended to address a potential, as opposed to existing, problem (and being proactive is a legitimate approach for IND to adopt) the policy needs to be justifiable on that basis. Article 14 of the ECHR 37. The Human Rights Act 1998 („HRA 1998‟) brought into domestic law the main provisions of the ECHR. Section 6 of the HRA 1998 provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. The Home Secretary and the Home Office are “public authorities” for the purposes of section 6. The anti-discrimination provision in the ECHR is set out in Article 14 which states – “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

14

Note that whilst Article 14 refers to “race” and “national or social origin”, “other status” has been held to include nationality. 38. In Johnston v Ireland the European Court of Human Rights said that the purpose of Article 14 is to “safeguard[s] persons who are placed in analogous situations against discriminatory differences of treatment in the exercise of the rights and freedoms recognised by the Convention”. 39. The first point to make about Article 14 is that it is not a free standing prohibition of discrimination, but only applies to discrimination in the enjoyment of Convention rights. When relying upon Article 14, although it is not necessary to demonstrate a breach of another Convention right, it is necessary to show that the facts at issue fall “within the ambit” of another right (Petrovic v Austria). The courts have had difficulty defining exactly what this means and there have been a number of apparently inconsistent decisions. 40. In the immigration and asylum context, people who allege that IND has discriminated against them contrary to Article 14 are most likely to argue that the facts fall within the ambit of either Article 3, 5 or 8. Since an asylum claim will almost invariably include a claim to Article 3 protection, the processing of asylum claims is likely to fall within the ambit of Article 3. Detention is likely to fall within the ambit of Article 5 and/or Article 8. Restricting access to those lawfully in the UK for dependants or visitors, in the context of immigration control and the entry clearance system, is likely to fall within the ambit of Article 8. 41. The House of Lords in R (S) v Chief Constable of South Yorkshire Police set out a framework for considering questions of discrimination under Article 14 in the form of five questions (known as the Michalak analysis, after an earlier case where this framework was first put forward); (i) (ii) (iii) (iv) (v) Do the facts fall within the ambit of one or more of the Convention rights? Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? If so, was the difference in treatment on one or more of the proscribed grounds under Article 14? Were those others in an analogous situation? Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?

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42. However, in the more recent case of R (Carson and Reynolds) v Secretary of State for Work and Pensions the House of Lords said that the Michalak analysis is not always the best approach to Article 14 cases. In particular, whether questions (iv) and (v) can actually be separated out in this way in all cases was called into question. The move appears to be away from a rigid step-by-step approach to a much more “simple and non-technical” approach (Lord Nicholls). Lord Nicholls said; “Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is then whether the alleged discrimination … can withstand scrutiny.” 43. The opinions of the other judges lend support to this approach. Lord Hoffman, for instance, suggests that once the court has addressed whether the alleged discrimination is in connection with/within the ambit of a Convention right and on a ground stated in Article 14 (i.e. Lord Nicholls‟ “prerequisite”) the remaining issue is simply whether there is discrimination. “Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different … There is only discrimination if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an „analogous situation‟…” Lord Hoffman went onto say that whether cases are sufficiently different is “partly a matter of values and partly a matter of rationality”. He indicated that it is necessary to differentiate between cases where the ground of alleged discrimination prima facie appears to offend our notions of respect due to the individual (e.g. race, gender, sexual orientation) and cases where the ground of alleged discrimination merely requires some rational justification (e.g. education, wealth, occupation). Although he accepted that there may be borderline cases (the example he gave was age) he said that there will usually be no difficulty in decided whether one is dealing with “a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy.” Nationality falls into the first category, along with race. Lord Hoffman explained the importance of this classification as follows: discrimination in the first category cannot be justified on utilitarian grounds whereas discrimination in the second category usually depends upon considerations of the general public interest. He said; “while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin difference in treatment in the second category are very much a matter for the democratically elected branches of government.”

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44. Lord Walker supported this approach, reiterating that an allegation of discrimination in the first category calls for “severe scrutiny”. So, cogent/very weighty reasons will be needed to justify differential treatment on grounds such as race or nationality, as the European Court of Human Rights has also emphasised. 45. It is clear that there is some overlap between the concept of reasonableness in a public law sense (set out in paragraphs 35 and 36 above) and the concept of justification in the context of Article 14. The Article 14 test, as far as nationality, race etc. are concerned, can be described as more stringent than the public law test and the justification required is akin to that required to justify indirect discrimination under the RRA 1976 (see paragraph 12 above). 46. Therefore, Article 14, like public law reasonableness, can be seen as an additional layer on top of the RRA 1976 which must be considered in all cases. For example, where a policy amounts to X being treated less favourably than Y on racial grounds, even though it will not be unlawful under the RRA 1976 if it is the subject of a section 19D authorisation, it could still be challenged successfully in reliance of Article 14 if the facts fall within the ambit of another Convention right and there is not a sufficient difference between X and Y to justify different treatment. OBTAINING ADVICE ON RACE DISCRIMINATION ISSUES 47. The informal procedure developed by LAB and Social Policy Unit (SPU) is as follows; (i) Where the question arises in the course of policy development or operational activities about whether something does or does not amount to racial discrimination, the query should be referred in the first instance to SPU. SPU will be able to give advice on whether what is proposed amounts to direct or indirect discrimination. If SPU requires specific legal advice on this question, it can refer the issue to LAB. Having one point of reference ensures that there is consistency in how race discrimination matters are dealt with in IND. (ii) If what is proposed could amount to indirect discrimination further advice will be given on whether there is sufficient evidence to justify the proposal and whether any more evidence is necessary. If what is proposed amounts to direct discrimination, then in order to proceed a section 19D Ministerial authorisation must be obtained (unless legislation covers the proposal). This requires advice from SPU (and LAB if necessary) on the appropriate evidence required to justify the making of an authorisation followed by scrutiny of the evidence to assess whether it justifies what is proposed. Consideration should be given to the length of time that the discrimination should be authorised for. This should be no longer than is necessary to achieve the objective of the policy or operation. 17

(iii)

Once SPU and LAB have advised that a Ministerial authorisation can be justified and set out the associated risks, the process of obtaining a Ministerial authorisation requires LAB to prepare a draft which is attached to a submission from SPU setting out the background, analysis of the evidence and explanation of the authorisation. The Minister must then agree the authorisation and sign and date it. A Ministerial authorisation is not a statutory instrument and therefore is not required to be laid before Parliament, although the convention has been to announce it by parliamentary question/statement. A copy of the authorisation is sent to the Commission for Racial Equality (CRE), the Immigration Law Practitioners‟ Association (ILPA) and the Race Monitor with an accompanying explanation of what it authorises and why it is necessary. The original copies of signed Ministerial authorisations are kept by SPU.

First edition: 26 January 2005 Revised version: 22 May 2006

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Cutter Guidance Version 2 Final

19_UKBA_Cutter_Guidance Introduction
The purpose of this document is to provide a general outline of the legal powers available to HM Cutters to conduct at-sea law enforcement operations. A list of the
relevant treaties and legislation (and abbreviations) is at Annex A. An explanation of

the changes made to customs legislation as a result of the decision to merge the work of Customs (at the border) and the Border and Immigration Agency and thus „establish a unified border force‟ as UKBA can be found at Annex B.

At-sea law enforcement operations
1.1

HM Cutters and their crew may conduct at-sea law enforcement operations on

behalf of the UK Border Agency. The legal powers available to UK Border Force officers1 to carry out law enforcement interdictions at sea depend on the target vessel‟s location2 and nationality (i.e. flag), namely: (a) Ships (and vessels) of any nationality (or none) in the UK‟s internal waters; (b) UK (British3) ships; (c) Foreign ships4 (or ships without nationality) in the UK‟s territorial sea; (d) Foreign ships exercising innocent passage in the UK‟s territorial sea5;

(e) Ships on the high seas.
1 2

UKBA‟s Border Force is part of the UKBA. UKBA is an executive agency of the Home Office. CEMA section 1 ship and vessel includes any boat or other vessel whatsoever and to the extent provided in CEMA section 2, any hovercraft. 3 British ships and United Kingdom ships are defined within the meaning of section 1 of the Merchant Shipping Act 1995. A British ship will not include a ship registered in the Isle of Man or any of the Channel Islands unless it is also registered under Part 2 of the Merchant Shipping Act 1995. A British ship will include ships registered in any of the 14 British Overseas Territories. 4 Merchant Shipping Act 1995 section 313 provides “foreign” in relation to a ship, means that it is neither a United Kingdom ship nor a small ship (i.e. a small ship” means a ship less than 24 metres in length). 5 Territorial Sea Act 1987 section 1(1) provides the breadth of the territorial sea adjacent to the United Kingdom shall for all purposes be 12 nautical miles.

Cutter Guidance Version 2 Final

Internal-water interdictions

1.2

The UK retains full sovereignty over its internal waters6. This means that UK

Border Force officers may exercise both customs and immigration7 powers to stop and board a suspect ship (regardless of flag) under their relevant legislation whilst it is located in the internal waters. PACE also applies in relation to anyone detained by a UK Border Force Officer on the boarded ship which at the relevant time is located in the internal waters.

Territorial-sea interdictions 1.3 With regard to the at-sea anti-smuggling operations in territorial seas, UK

Border Force Officers may rely on their customs powers set out in the Customs and Excise Management Act 1979 (CEMA) to stop and board the target ship whilst it is located within the limits of a customs port (see Chart LOS2E, and list of customs port approvals at Annex B)8. The aim of these type of interdiction operations is to enforce the relevant provisions in the customs and excise acts. Generally a coastal state‟s zones of maritime jurisdiction9are elective; they do

1.4

not exist unless declared by the coastal state. The UK has elected to exercise sovereignty over vessels in its territorial seas (extending 12 nautical miles from the baselines) subject to The United Nations Convention Law of the Sea (UNCLOS).

1.5

Under UNCLOS foreign ships enjoy the right of innocent passage in the

coastal State‟s territorial seas.10 This means that HM cutters must not hamper the innocent passage of a foreign ship through the UK‟s territorial seas provided it is not prejudicial to the peace, good order or security of the UK. Amongst the activities listed as being so prejudicial, is "the loading or unloading of any commodity, currency
6

Sovereignty means that the law of England & Wales, Scotland and Northern Ireland applies over vessels in the internal waters as if it would when the vessel is alongside at a port. 7 Immigration Act 1971, schedule 1, para 1(4) and (5) 8 Maritime operation around the coastline of the IoM must be carried out in accordance with the provisions of the MOU and with the consent of the IoM authorities. Legal advice from HOLAB should be sought in the event of a maritime operation around the coastline of Northern Ireland. 9 Jurisdiction means the authority of a sovereign power (i.e. the UK) to legislate and enforce its laws. 10 Article 17 UNCLOS: The meaning of "passage" is defined in Article 18; but note that passage "shall be continuous and expeditious"(Article 18.2). This does not mean non-stop; stopping and anchoring must, however, be incidental to navigation or necessitated by force majeure or distress or rendering assistance

Cutter Guidance Version 2 Final

or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal state”.11 Officers should also be aware of the provision in Article 19.2(l) of UNCLOS which encompasses “any other activity not having a direct bearing on passage”. This does clearly include the transit of ships containing drugs. UNCLOS12 further provides that the criminal jurisdiction of the coastal State

1.6

should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:   

if the consequences of the crime extend to the coastal State; or if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or

if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

1.7

By way of example, a foreign ship identified in para 1.1(d) would not be

entitled to claim innocent passage if those on board were suspected of smuggling illicit traffic. UK ships, ships without nationality and other vessels 13 are not entitled to claim the right of innocent passage through the UK‟s territorial seas.

High-sea interdictions (international waters) 1.8 Ships on the high seas will sail under the flag of one State only and, save in

exceptional cases provided for in UNCLOS (e.g. piracy) shall be subject to its exclusive jurisdiction.14 In other words, the flag state may enforce its laws over the ship and its crew whilst it is on the High seas unless the authorities of that state agree

11 12

UNCLOS Article 19 UNCLOS Article 27 (criminal jurisdiction on board a foreign ship) 13 The use of the term “vessel” in this note does not include foreign ships entitled to exercise their rights under UNCLOS. 14 UNCLOS article 92.

Cutter Guidance Version 2 Final

to waive jurisdiction in favour of a requesting state (e.g. Article 17 of the Vienna Convention procedures referred to in Annex A).

1.9

With regard to piracy this constitutes an automatic exception to the rule of

exclusive flag-state jurisdiction allowing boarding and seizure regardless of flag-state consent or whether the boarding state is affected by the vessel‟s activities. Piracy involves (a) an act of violence, detention or depredation; (b) committed for private ends; (c) on the high seas or in place outside the jurisdiction of any state; and (d) by the crew or passengers of a private ship or aircraft, against another vessel or persons or property abroad.

UK flagged ship interdictions 1.10 A UK flagged ship15 wherever it is located, may be subject to UK jurisdiction16 in relation to conduct which is an offence under UK law, which is alleged to have been committed by a British citizen on board the UK ship or alleged to have been committed by a foreign national on board the UK ship – but only whilst it is on the high seas.

Anti-smuggling at-sea interdictions 2.1 If a ship is within the limits of a customs port, then s27 of the Customs and

Excise Management Act 1979 provide the cutter crews (i.e. officers engaged in the prevention of smuggling) with the power to board and search the target ship. The limits of a customs port are marked on Chart LOS2E and extend to most of the coastline (12 Nautical Miles) around the UK (i.e. a territorial-sea/internal-water interdiction). There is also a power to stop and search a vessel under s163 of CEMA where there are reasonable grounds to suspect that the vessel may be carrying goods
15

United Kingdom ship means a ship registered under Part 2 of the Merchant Shipping Act 1995 in the United Kingdom. This excludes ships registered in the overseas territories, as well as those registered in the Channel Islands or Isle of Man. It also excludes Government ships registered under section 308 of the 1995 Act and those small vessels (under 24 metres) that are not and do not require to be registered. The UK‟s role as a flag state extends to jurisdictions where it is responsible for the conduct of the external relations of territory which provides a ship‟s registration, i.e. the Channel Islands, the Isle of Man and the 14 British Overseas Territories. 16 This, so far as England and Wales is concerned, is the combined effect of section 281 of the Merchant Shipping Act 1995, section 3A of the Magistrates‟ Courts Act 1980 and section 46A of the Supreme Court Act 1981. In relation to Scotland section 281 of the Merchant Shipping Act 1995 applies to offences under that Act. For other offences, Scottish courts have general jurisdiction only within the territorial limit although a number of statutes confer extra territorial jurisdiction for specific offences.

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which are (i) chargeable with any duty which has not been paid (e.g. cigarette smuggling); (ii) in the course of being unlawfully removed; or (iii) are otherwise liable to forfeiture under the customs and excise acts (e.g. drug smuggling). Only the „Proper Officer‟ („Proper Officer‟ is defined by section 1(1) of

2.2

CEMA 1979 as being the person appointed or authorised to do anything by the UKBA) will have free access to every part of the ship and:   

cause any goods to be marked before they are unloaded; lock up, seal, mark or otherwise secure any goods aboard; break open any place or container which is locked and of which the keys are withheld.

Any goods found concealed on board any such ship shall be liable to forfeiture.

2.3

Although there is no express provision in CEMA to require the ship to be

taken to a port for the purpose of carrying out the search under the relevant provisions of the Act, it is recognised that it would be dangerous to conduct such a search at sea. Therefore where it is necessary to carry out more than a cursory examination, the boarded ship may be taken to the nearest port where the power under section 163 of CEMA can properly be exercised.

2.4

Given the possible need to subsequently justify any action under this power

before a court, any request to divert should be recorded by the customs official in their notebook, together with a brief statement of the reason for the request.

Time of importation and exportation 2.5 Under section 5 of CEMA the „time of importation‟ of any goods by sea shall

be deemed to be at the time when the ship carrying them comes within the limits of a port.17 The „time of exportation‟ of any goods from the UK by sea shall be deemed to be at the time when the goods are shipped for exportation. In the case of goods of a class or description with respect to the exportation of which any prohibition or
17

CEMA section 5(2) is subject to ss (3) and (6).

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restriction is for the time being in force under or by virtue of any enactment which are exported by sea, the time of exportation shall be deemed to be at the time when the exporting ship departs from the last port at which it is cleared before departing for a destination outside the UK. A ship shall be deemed to have arrived at or departed from a port at the time when the ship comes within or, as the case may be, leaves the limits of that port (see Chart LOS2E).

Travel documents, passports 2.6 A customs official may require any person entering or leaving the UK (a) to produce the person‟s travel documents for examination, or (b) to answer any questions put by the Proper Officer about the person‟s journey. The Proper Officer may rely on this power once on the boarded ship provided the original basis for boarding the ship under s27 of CEMA and being therein is for a customs function and the Proper Officer is satisfied that the ship is in the process of entering or leaving the United Kingdom (which should be taken to mean “the limits of a port”/the territorial seas). In the maritime environment a customs function can include, for example boarding a suspect ship which at the relevant time is within the limits of a customs port and is suspected of smuggling any item which is subject to a prohibition or a restriction by virtue of any enactment. Once on board, the customs official may ask the crew for their travel documents/passport as part of their questioning process, provided that ship is entering or leaving the United Kingdom. However, a customs official may not stop and board a suspect vessel solely for the purpose of checking the crew‟s travel documents and passport. In other words, the customs official must be satisfied that he can board the vessel under s27 of CEMA (as referred to above) because he is an officer engaged in the prevention of smuggling.

2.7

It is also essential that officers exercising this power are able to demonstrate

that it is being exercised for a customs rather than an immigration purpose. Information obtained relating to an immigration matter in the course of such questioning may be shared with immigration colleagues on shore through the powers in the Borders Citizenship and Immigration Act gateways 18 but further enquiries should not be pursued by the proper officer in relation to an individual‟s immigration

18

See section 14 -19 of the BCIA.

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status once the officer has discovered information of immigration interest. In these circumstances, the reason for the intervention, what subsequently gave rise to immigration issues being discovered and the further actions of the proper officer once this information was identified should be recorded. Coasting Ship19 2.8 The Proper Officer may also at any time during a coasting ship‟s voyage,   

board and search it (CEMA sec 72(3)) and: examine goods carried in the ship at any time while they are on board (sub section 72(1)(a)); require any container to be opened or unpacked (at the proprietor's expense for unpacking and repacking (sub section 72(2)); require any document which should properly be on board to be produced or brought to him for examination (sub section 72(3)(b)).20

Power of arrest 2.9 If there is reasonable ground to suspect a person is or has been involved in the improper importation21 or exportation22 of goods, making untrue declarations23 or being involved in the fraudulent evasion of duty etc 24, he may be arrested under the relevant provision in CEMA25. Where there is a power of arrest under CEMA, it should be relied upon where the boarded vessel is at the relevant time in the UK‟s territorial seas.

Information to be given on arrest
19

"Coasting ship" is defined by section 69 as a ship engaged in the trade of carrying goods coastwise between places in the UK or the UK and Isle of Man. 20 If the master fails to do either he is liable for a summary offence. The maximum penalty is a fine up to level 2 on the standard scale (i.e. £500). 21 CEMA section 50(1) and (2): Penalty for improper importation of goods. 22 CEMA section 68(2): penalty in relation to exportation of prohibited or restricted goods. 23 CEMA section 167(1): penalty in relation to knowingly or recklessly making an untrue declarations etc. 24 CEMA section 170(1) and (2): penalty for fraudulent evasion of duty, etc. 25 The other arrestable offences under CEMA are: section 24(5) unauthorised movements of goods by pipeline, section 53(8) entry outwards of goods with fraudulent intent and section 63(6) entry outwards of exporting ships with fraudulent intent, section 68A(1) offences in relation to agricultural levies, section 87 penalty for offering goods for sale as smuggled goods, section 100(1) general offences relating to warehouse and warehoused goods, section 129(3) power to remit or repay on denatured goods, section 158(4) power to require provision of facilities and section 168(1) counterfeiting documents, etc.

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2.10

It should be noted that, so far as its application to customs officials are

concerned, the provisions of the PACE Order26 (unlike CEMA) do not extend to the UK‟s territorial seas. However, it is UKBA‟s policy that its officials must observe the spirit of PACE and its Codes when operating in the UK‟s territorial seas. An arrested person must therefore be informed that he is under arrest and the grounds for his arrest as soon as practicable otherwise the arrest will be unlawful. Customs officials must also have regard to paragraph 3.3 and note 3 to PACE Code of Practice G 27 Adjacent to Scotland, the common law and provisions in the Criminal Procedure (Scotland) Act 1995 relating to arrest apply. Similarly, outside the territorial seas, the provisions of the PACE Order and the Scottish provisions do not apply. Therefore under CJICA, enforcement officers should act in conformity with its provisions to secure relevant rights under ECHR (albeit a breach of PACE is not necessarily a breach of article 5 of the convention).

Must the customs official arrest? 2.11 The fact that an offence is an arrestable one does not mean that a person must

be arrested. It should be noted that if, for example, a person is found with a "personal use" amount of cannabis in his possession, there may be good cause to wish to dispose of the matter by seizing the drugs and offering a compound penalty28 to the person concerned, under the power contained in section 152(a) CEMA 197929.

2.12

Once a person is arrested, section 30 of PACE (as applied to customs officials

by the PACE Order) is of relevance because a cutter is not a designated office of the
26

See: s22 of the Borders, Citizenship and Immigration Act 2009, the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (SI 2007/3175) and the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (SR 2007/464).
27

Code G – Para 3.3 „A person who is arrested, or further arrested, must be informed at the time, or as soon practicable thereafter, that they are under arrest and the grounds for their arrest, see note 3. Note 3: „An arrested person must be given sufficient information to enable them to understand they have been deprived of their liberty and the reason they have been arrested e.g. when a person is arrested on suspicion of committing an offence they must be informed of the suspected offences nature, when and where it was committed. The suspect must also be informed of the reasons or reasons why arrest is considered necessary. Vague or technical language should be avoided.
28 29

[TBC: A compound penalty should only be offered in consultation with the CPS duty lawyer]. Current limits permit the following quantities to be compounded: all class B and C drugs (except amphetamines) - 50g. Amphetamines: 10g.

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UK Border Agency. Section 30 PACE applies to an arrest other than at an office of UKBA and provides that the person must be taken to a designated office of UKBA as soon as practicable after the arrest.30 They may be taken to a non-designated station if it appears to the officer that they are not to be kept in detention for more than 6 hours. It is important to observe in particular the time limit on detention without charge. This is likely to arise where someone is arrested at sea and is to be transported back to land for custody procedures etc. The relevant provision is section 41(2)(b) PACE 31 which stipulates that the "relevant time" (i.e. when detention begins) shall be either the time at which the person arrives at the office of UKBA in which the offence for which he was arrested is being investigated or the time 24 hours after the time of that person‟s entry into England and Wales, whichever is the earlier. If there is a operational requirement to keep an arrested person in detention on board a cutter (or on the boarded ship) for a period longer than 24 hours, because for example due to the location of the boarding, the cutter will take longer than 24 hours to transport the arrested person back to a designated office of the UKBA, the customs official should inform Maritime Aviation Command and Control Team (MACC) as soon as possible so that they in turn can seek legal advice from Home Office Legal Advisers Branch at 2 Marsham Street (HOLAB).

Seizure of cargo, ships, etc 2.13 Once board, the custom official may seize or detain anything which is liable to forfeiture under the customs and excise acts (section 139(1) CEMA32) by a customs official. A boarded ship will also be liable to forfeiture under CEMA in the following situations:

30

If an officer makes an arrest under CEMA in the UK‟s territorial seas, PACE does not apply but officers should still have regard to it as a matter of UKBA policy. 31 As modified by the 2007 Application Order. 32 Schedule 3 to CEMA lays down a self-contained code for resolving disputes caused by the seizure of ships and other goods. Note that where any goods, including a ship, are seized a Notice of Seizure must be given to anyone who appears to be an owner or one of the owners except where the seizure was made in the presence of any of the following: the person whose offence or suspected offence occasioned the seizure, the owner, or one of the owners, of the ship (or their agent) or the master of that ship.

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 where a ship is, or has been, in UK waters33 while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods (section 88);  where any part of the cargo of a ship is thrown overboard or is destroyed to prevent seizure while the ship is in UK waters or has been properly summoned to bring to by a vessel in the service of Her Majesty and has failed to do so and chase has been given (section 89);  where a ship has been within the limits of a customs port or the Isle of Man with a cargo on board and a substantial part of that cargo is afterwards found to be missing and the master of the ship fails to account therefore to the satisfaction of the Commissioners (section 90);  where a ship has failed to bring to when required to do so and chase has been given (section 91)  where any ship has been used for the carriage, handling, deposit or concealment of some other thing liable to forfeiture e.g. drugs (section 141). Special provisions34 apply to forfeiture of larger ships (i.e. a ship of 250 or

2.14

more tons)35

Outward Clearance procedures 3.1 Any customs official can board any ship which is cleared outwards from a port at any time while the ship is within the UK‟s territorial seas and require production of the ship‟s clearance. The customs official may also require the master to answer questions concerning the ship, cargo and intended voyage 36. The right of innocent passage through the UK‟s territorial sea for the purpose of proceeding to or from internal waters or a call at such roadstead or port facility will apply to foreign ships identified in situation (d) referred to above in para 1.1.
33

UK waters means any waters (including inland waters) within the seaward limits of the territorial sea of the UK (see section 1 of CEMA). 34 CEMA section 142: special provisions as to forfeiture of larger ships. 35 Ships that exceed 250 tons shall not be liable to forfeiture under these provisions unless the offence in respect of or in connection with which the forfeiture is claimed (a) was substantially the object of the voyage during which the offence was committed or (b) was committed while the ship was under chase by a vessel in the service of Her Majesty after failing to bring to when properly summoned to do so by that vessel. 36 Refusal by the master to produce the ship's clearance or answer such questions creates liability for a summary offence. The maximum penalty is a fine up to level 1 on the standard scale, (currently £200).

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The power to refuse or cancel clearance of a ship (section 65 CEMA 1979) 3.2 If a ship is detained for the purpose of any power or duty conferred or imposed

by or under any enactment, or for the purpose of securing compliance with any customs provision relating to the importation or exportation of goods the Proper Officer may at anytime refuse clearance of any ship and where clearance has been granted to a ship, a customs official may at anytime while the ship is within the limits of any port (see Chart LOS2E) demand that the clearance shall be returned to him. Any such demand may be made orally or in writing on the master of the ship37. Illicit-traffic at-sea interdictions 4.1 The Criminal Justice (International Co-operation) Act 1990 (CJICA) was enacted to implement the UK‟s obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on the 20 December 1988 (“the Vienna Convention 1988”) and specifically article 17. CJICA provides if anything which would constitute a drug trafficking offence if done on land in any part of the UK shall constitute an offence if done on a British ship38. It also further provides39 a person is guilty of an offence if on a specified ship40 wherever it may be, he (1) has a controlled drug in his possession; or (2) is in any way knowingly concerned in the carrying or concealing of a controlled drug on a ship, knowing or having reasonable grounds to suspect that the drug is intended to be imported or has been exported contrary to the Misuse of Drugs Act 1971 or the law of any state other than the United Kingdom.

4.2

The enforcement powers in respect of ships under CJICA are set out in

Schedule 3 of the Act. In this schedule “an enforcement officer” will include a customs official. For the purpose of CJICA, a British ship means a ship registered in the United Kingdom or a colony41. The territorial sea of the UK will also include the territorial sea adjacent to any of the Channel Islands, the Isle of Man or any colony42.
37

If the demand is not complied with, the master is liable for a summary offence. The maximum penalty is a fine up to level 2 on the standard scale (i.e. £500). 38 CJICA section 18 offences on British ships 39 CJICA section 19 ships used for illicit traffic 40 i.e. a British ship, a ship registered in a state other than the United Kingdom which is party to the Vienna Convention, or a ship not registered in any country or territory: CJICA ss19(1). 41 See section 24(1) of CJICA. Ship will also include any vessel used in navigation. 42 See section 24(1) of CJICA.

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Power to stop, board, divert and detain 4.3 An enforcement officer may stop the ship, board it and, if he thinks it

necessary for the exercise of his functions, require it to be taken to a port in the United Kingdom and detain it there43.

Flag state consent 4.4 Before exercising the enforcement powers set out in CJICA outside the

landward limits of the territorial sea of the UK in relation to a ship registered in a Convention state,44 (i.e. international-waters interdiction) authority must be obtained from the Director of Border Force (acting on behalf of the Secretary of State) through the UK national competent authority based at MACC. The procedures for obtaining flag state consent are set out in Annex C.

4.5

That authority can be given only where the Convention state concerned has, in

respect of their flagged ship, either requested the assistance of the UK for the purposes of section 20(1)45, or authorised the UK to act for that purpose. Section 20(1) and (2) of CJICA will be interpreted in the light of Article 17 of the Vienna Convention 1988 which provides for enforcement powers to be exercised where the:  flag State itself has requested the assistance of the UK pursuant to Article 17(2) of the Convention;  UK has notified the flag State of the presence of the vessel, confirmation of registration has been given and our request for authorisation has been accepted by that State pursuant to Article 17(3) of the Convention; or
 flag State has authorised the UK to act in accordance either with a treaty in

force or in accordance with some other high - level agreement or

43 44

CJICA Sch 3 para 2 Convention state has the meaning given in section 19(1) of CJICA, namely, a state other than the UK which is a party to the Vienna Convention. 45 The powers conferred on an enforcement officer under CJICA shall be exercisable in relation to any British ship where there are reasonable grounds to suspect those on board are trafficking drugs or a specified ship is being used for illicit traffic.

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arrangement reached between the UK and the flag State pursuant to Article 17(4) of the Convention46. 4.6 The Secretary of State may impose conditions or limitations on the exercise of

the powers as may be necessary to give effect to such conditions or limitations as the Convention state may impose. 47 The powers shall not be exercised in another state's territorial sea without the authority of the Commissioners and they will not give that authority unless that third state has consented to the exercise of those powers.

The powers of the enforcement officer

4.7

The powers of the enforcement officer are set out in Schedule 3 of the Act

which specifically provides that an enforcement officer may: 

search the ship, anyone on it and anything on it including its cargo and require any person on the ship to give information concerning himself or anything on the ship;48

arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of an offence under CJICA and seize and detain anything found on the ship which appears to him to be evidence of such an offence;49

take any other person with him to assist in exercising his powers and that person can perform any of the officer's functions under the officer's supervision (known as assistants);50

 

use reasonable force, if necessary, in the performance of his functions;51 will not be liable in civil or criminal proceedings for his actions in the purported carrying out of his functions if the court is satisfied that the act was done in good faith and there were reasonable grounds for doing it 52.

46

See the decision of the Court of Appeal in R -v- Dean and Bolden [1998] 2 Cr App R 171 for further discussion as to Article 17 of the Convention. 47 CJICA section 20(3) 48 See CJICA schedule 3, para 3 49 See CJICA schedule 3, para 4 50 See CJICA schedule 3, para 5, e.g. SOCA officers 51 See CJICA schedule 3, para 6 52 See CJICA schedule 3, para 8

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4.8

To expand on the above, if an enforcement officer believes a suspected

offence under section 18 or 19 of CRIJCA may have been committed he has the power to do any of the following.

Search and obtain information 4.9 The enforcement officer may (a) search the ship, anyone on it, and anything

on it, including its cargo, open any containers, make tests and take samples of anything on the ship; (b) require any person on the ship to give information concerning himself or anything on the ship. There is no power to require information
about anyone else on (or off) the ship; and c. require the production of documents, books

or records relating to the ship or anything on it (and make photographs or copies of such items).

CriJICA Power of arrest 4.10 If an enforcement officer has reasonable grounds to suspect that an offence

under either section 18 or 19 of CJICA has been committed on a ship to which the section in question applies, he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. Note that good practice dictates that a person arrested in international waters should be reminded that he is still under arrest once inside the UK‟s territorial seas.

Seize and detain 4.11 If an enforcement officer has reasonable grounds to suspect that an offence

under section 18 or 19 of CRIJICA has been committed on a ship he may seize and detain anything found on the ship which appears to him to be evidence of the offence.
This power will normally be exercised in support of an arrest (see above).

4.12

A notice in writing must be served on the master stating that the vessel is

detained. This should be done at the time of detention. If detention is to cease, a further notice must be served to this effect (para 2(4)). The standard Notice of Detention issued by the Maritime Branch must be used on all occasions.

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Evidence of authority 4.13 If required to do so, an enforcement officer shall produce evidence of his authority53.

Prosecution/Forfeiture 4.14 Once on board, the enforcement officer may seize anything which he

considers to be evidence of illicit traffic (para 4, sch 3). Those on board may also be arrested and brought back to the UK to stand trial for an offence under s19 of CriJICA (ships used for illicit traffic); although any charging decision will be made by the CPS prosecutor. Post conviction for this offence, the UK courts have the power under s27 of the Misuse of Drugs Act 1971 to make a forfeiture order in relation to anything shown to the satisfaction of the court to relate to the s19 offence including the boarded ship which was used for illicit traffic. This offence falls within this section as it is an offence specified in paragraph 1 of Schedule 2 of POCA 2002. Any personal property which relates to the offence may be forfeited including the suspect ship and illicit cargo but s27 does not extend to intangibles, or to property situated at the time of conviction outside the jurisdiction of the English courts.

International-water interdictions and PACE 5.15 Where an international water interdiction is carried out under CriJICA, PACE

has no application until the arrested crew are brought within the internal waters of England & Wales. However it is the policy of the UKBA to follow PACE as closely as is possible in such circumstances (for example, suspects should be told that they have the right to remain silent - an abbreviated version of the caution). In calculating the beginning of the relevant time, regard should be had to section 41(2)(b) PACE which states that in the case of a person arrested outside England and Wales, the relevant time shall be the earliest of either the time when the person first arrives at the office of UKBA in which the offence for which he was arrested is being investigated or the time 24 hours after the time that person enters England and Wales. Generally, once an arrest has taken place, customs officials should ensure that the suspects are taken to the nearest available port; however, where two ports are approximately equi-

53

See CJICA schedule 3, para 2(7)

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distance apart, there is no objection to choosing one port over another for operational or logistical reasons. Where a person has been arrested outside of the UK‟s territorial seas, it is

5.16

good practice to remind them that they are still under arrest once they cross over into the internal waters of England & Wales. At that point, they are of course entitled to all the rights and safeguards guaranteed by PACE (or the equivalent legislation in Scotland) and should be given the full caution.

Migrant smuggling and human trafficking 6.1 The illegal movement of persons by sea may occur in three cases: the slave

trade, human trafficking and migrant smuggling. Migrant smuggling involves procuring a person‟s entry into a state „of which the person is not a national or a permanent resident‟ by crossing borders without complying with national immigration law and doing so for financial benefit54. Human trafficking involves the recruitment and transportation of persons, including within one state, by coercive means for purposes of exploitation including sexual exploitation, forced labour and „slavery or practices similar to slavery‟. 55 Only the Migrant Smuggling Protocol attracts maritime interdiction.

Immigration Acts 6.2 Although the UK is a signatory to the Migrant Smuggling Protocol there are

no domestic powers to carry out at-sea enforcement operations against vessels suspected of smuggling migrants at sea. This is because the Immigration Acts do not extend to the UK‟s territorial seas or the High Seas. In other words, UK Border Force Officers appointed as immigration officers may not exercise their powers under the Immigration Acts in relation to a suspect ship or its crew identified in para 1(c), (d) and (e). Once the suspect ship comes within the internal waters or alongside at a UK port these immigration powers will be triggered and may be relied upon by appointed immigration officers in relation to those on board the suspect ship.
54

Article 3(a) and (b) and Article 6, The Protocol against Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organised Crime 2000 (Migrant Smuggling Protocol). 55 Article 3(a) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime 2000 (Human Trafficking Protocol).

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The Right of Hot Pursuit and Constructive Presence

Hot pursuit 7.1 The right of "hot pursuit" may be summarised in the following principles,

taken from UNCLOS: 

The right arises, for the purposes of enforcing a provision under CEMA. The pursuit must begin within the UK‟s territorial sea56.

The pursuit may be exercised only by warships or military aircraft or other ships or aircraft clearly marked and identifiable as being on government non-commercial service and authorised to that effect. This includes customs cutters.

The pursuit must not be interrupted, but it may be done in relay, e.g. by a custom cutter handing over pursuit to an RAF aircraft.

Hot pursuit may only be commenced within the territorial sea after a visual or auditory signal to stop has been given at such a distance which enables it to be seen or heard by the foreign ship. A signal by VHF radio will be sufficient for these purposes, as will other means of communication such as GMDSS, loud hailer, semaphore, etc.

The right of hot pursuit ceases if a. the pursuit is interrupted, or b. the ship pursued enters the territorial sea of its own State or that of a third State.

7.2

There has been some debate in case law as to whether the right to “hot

pursuit” must be undertaken as soon as the breach of the law within territorial seas occurs. It is recognised that “hot pursuit”, if it is to be lawful, must follow closely upon the violation and that, whilst this requirement is not without a measure of flexibility, any unreasonable delay will serve to cast doubt on the legitimacy of the
56

It could also include the contiguous zone, if appropriate (the contiguous zone of each country varies; the UK has not claimed any contiguous zone).

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pursuit. Obviously, delay due to reasons such as the state of the sea, the prevailing weather conditions or operational logistics are likely to be justified57.

7.3

Care must be taken in exercising the right to "hot pursuit", as the pursuing

state may be liable for damages if the measures taken in purported exercise of the right are unjustified. Given this risk, advice should wherever possible be sought in advance from a member of the Home Office Legal Adviser‟s Branch (HOLAB). Constructive presence 7.4 There is also a right to arrest foreign ships which use their boats to commit

offences within the territorial sea while themselves remaining on the high seas. This is the doctrine of constructive presence, implicitly recognised in the provisions of UNCLOS relating to hot pursuit. The doctrine of constructive presence may operate together with the right of hot pursuit, so as to give coastal States some flexibility in the manner in which they enforce their laws. For example, in the case of R v. Mills (1995), a right of hot pursuit was asserted by the United Kingdom against the Poseidon, a ship registered in St Vincent that was smuggling cannabis into the United Kingdom by transferring it on the high seas to a British trawler which came from an Irish port and subsequently put in to a British port. The judge was not troubled by the fact that the second ship was not one of the boats of the ship pursued or even a boat that had put out from and returned to British shores. Firearms 8.1 A person may without holding a certificate have in his possession a firearm or ammunition on board a ship.58 The person may only remove the firearm from or to a ship whilst in the UK‟s internal waters if he has obtained from a constable a permit for that purpose. 8.2 The Enforcement Handbook59 sets out the detailed guidance on the customs controls which are applicable to firearms on board vessels. Different rules apply to pleasrue craft and commercial ships.

57

For a helpful analysis of the “hot pursuit” doctrine see the judgement in R -v- Mills and others (transcript available from MACC).
58 59

The Firearms Act 1968, section 13. See Firearms: Imports (overall controls and policy)

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UKBA (Borders, Enforcement and Citizenship) Team Legal Adviser's Branch Home Office Ground Floor Seacole 2 Marsham Street

Date: [ May 2010]

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ANNEX A

International Law United Nations Convention on the Law of the Sea (UNCLOS) The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (the Vienna Convention)

Article 17 Illicit Traffic by Sea 1. The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the law of the sea.

2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.

3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag state to take appropriate measures in regard to that vessel.

4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia: (a) Board the vessel; (b) Search the vessel; (c)If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.

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5. Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.

6. The flag State may, consistent with its obligations in paragraph 1of this article, subject its authorisation to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.

7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation. 8. A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action.

9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article.

10. Action pursuant to paragraph 4 of this article shall be carried out by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.

11. Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.

Cutter Guidance Version 2 Final

Primary Legislation The Commissioners for Revenue and Customs Act 2005 (CRCA) The Customs and Excise Management Act 1979 (CEMA) The Police and Criminal Evidence Act 1984 (PACE) The Criminal Justice (International Co-operation) Act 1990 (CJICA) The Misuse of Drugs Act 1971 (MDA) The Proceeds of Crime Act 2002 (POCA)

Secondary Legislation England & Wales The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (SI. 2007 No.3175) (PACE Order). The Appointment of Ports (London) Order 1980 SI 1980 No 482 The Appointment of Ports (Folkestone, Dover, Ramsgate, Whitstable and Medway) Order 1980 SI 1980 No 484 The Appointment of Ports (Weymouth, Poole, Solent, Littlehampton, Shoreham and Newhaven) Order 1980 SI 1980 No 1369 The Appointment of Ports (Bristol Channel and Cardigan Bay) Order 1980 SI 1980 No 1367 The Appointment of Ports (Padstow, Penzance, St Mary‟s, Falmouth, Fowey, Plymouth, Dartmouth, Teignmouth and Exeter) Order 1980 SI 1980 No 1368 The Appointment of Ports (Liverpool, Mostyn, Holyhead and Caernarfon) Order 1980 SI 1980 No 1879 The Appointment of Ports (Preston, Fleetwood, Heysham and Workington) Order 1980 SI 1980 No 1882 The Appointment of Ports (Tees and Hartlepool, Sunderland, Tyne, Blyth and Berwick) Order 1980 The Appointment of Ports (Boston, Humber, Scarborough and Whitby) Order 1980 SI 1980 No 486 The Appointment of Ports (Colchester, Orwell Haven, Lowestoft, Great Yarmouth and King‟s Lynn and Wisbech) Order 1980 SI 1908 No.483

Cutter Guidance Version 2 Final

Scotland The Appointment of Ports (Forth, Tay and Abroath) Order 1980 SI 1980 No 81 The Appointment of Ports (North of Scotland) Order 1980 SI No 1880 The Appointment of Ports (Strathclyde and Dumfries and Galloway) Order 1980 SI 1980 No 1881

Cutter Guidance Version 2 Final

Annex B

Borders, Citizenship and Immigration Act 2009 (BCIA)

Introduction 1. Part 1 of the BCIA provides a legislative framework for immigration officers and officials of the Secretary of State to exercise revenue and customs functions which to date have been exercised by HMRC. In practice, officials of the UK Border Agency (UKBA), which is an Executive Agency of the Home Office, exercise these functions on behalf of the Secretary of State and the Director of Border Revenue respectively. Non-revenue customs functions such as the role of MACC and HM Cutters in the prevention of drug smuggling at sea is a matter for the Secretary of State and general customs officials. Whereas the role of MACC and HM Cutters in preventing the smuggling of goods where duties or taxes have not been paid (cigarette smuggling) will be a matter for the Director of Border Revenue and customs revenue officials.

2. All members of MACC and HM Cutters must be designated as a general customs official and a customs revenue official under BCIA in order to carry out their daily duties. This legislation further provides that so far as is appropriate, references to an officer of Revenue and Customs, or to HMRC, in an enactment, instrument or document which includes the legislation listed below, are to be construed as including a reference to a general customs official and or customs revenue official.

Cutter Guidance Version 2 Final

Police and Criminal Evidence Act 1984 (PACE) 3. Section 22 of BCIA applies the provisions of PACE (Application to Revenue and Customs) Order 2007 (SI 2007/3175) and the PACE (Northern Ireland) Order (SR 2007/464) (hereinafter referred to as the “PACE Order”) to criminal investigations conducted by designated customs officials in relation to a general customs or customs revenue matter, and to persons detained by such designated customs officials.

Cutter Guidance Version 2 Final

Annex C

Procedures for dealing with Requests to obtain flag State consent

Outgoing Request 1. MACC will require the approval of the operational commander before any

enquiries can be initiated in relation to an operation requiring the boarding of a vessel in international waters by UK authorities. This will take the form of a Request to Maritime A [MACC] for Assistance. This request should include a brief summary of the investigation and or relevant intelligence, including as much detail as possible, e.g. name of vessel, port of registry, flag state, current position/area, crew if known, reasons for boarding, likely destination of drugs/vessel and intended action after boarding.

2.

On receipt of the Request, the Maritime case officer will prepare a number of

forms which will record all further actions undertaken by MACC. These forms lay out the procedures to be adopted by the department and give provision for the recording of all actions when making an application to send a Letter of Request to an overseas Competent Authority.

3.

Where the maritime operation involves the exercise of enforcement powers

against a ship engaging in illicit traffic under schedule 3 of CriJICA, MACC will always seek legal advice from Home Office Legal Adviser‟s Branch. If circumstances permit the advice will be obtained in writing in advance, and kept on file. The appointed legal adviser in HOLAB will always confirm their advice in writing.

4.

MACC will identify the Competent Authority of the relevant foreign nation

for an Article 17 request. The UN Directory on Competent Authorities (held by MACC) is the essential starting point. As this directory is updated on a regular basis, MACC will also verify the details of the overseas competent authority, by contacting the UN Drug Control Programme (UNDCP) Vienna, who is responsible for collating and updating this information.

Cutter Guidance Version 2 Final

5.

Once the appropriate overseas competent authority has been identified, MACC

will draft a Letter of Request on behalf of the Director of Border Force who is authorised to act on behalf of the competent national authority. This letter will request the foreign authority for permission to board their suspect vessel pursuant to article 17(3) of the Vienna Convention and CriJICA. In making this request, the Director will need to provide the details of the vessel and its location (co-ordinates or best position info), specify the reasons why he has reasonable grounds to suspect that the vessel is engaged in illicit trafficking and what actions are being requested. Finally, the Director will ask for confirmation that the overseas competent authority, to which the letter is addressed, is the designated authority for that country concerned under their appropriate laws.

Decision making 6. Once the overseas competent authority approval has been obtained in writing,

the Director will then be asked to authorise exercise of the enforcement powers set out in schedule 3 of CriJICA. In giving his authority, the Director is acting on behalf of the Secretary of State who has delegated their authority under section 20 of CriJICA.

7.

At this time, the Director must be shown all the relevant paperwork including

the response from the foreign competent authority and any written advice from HOLAB before authorising the enforcement officer to exercise these powers. There are further procedures which apply when there is a change in circumstances from the details given in the initial request or there is a delay of longer than 24 hours, verbal reconfirmation must be obtained, prior to the boarding, from the overseas competent authority. After The Director has given their approval, the Operational Commander who will be acting as an enforcement officer must be advised immediately and informed of any conditions imposed by the overseas competent authority.

Cutter Guidance Version 2 Final

8.

At the time of boarding it is essential that the master of the suspect vessel is

issued with a Notice of Detention as required by Schedule 3(2)(4) of CriJICA. This Notice informs the Master of the Vessel that the officer serving the notice is a duly authorised Enforcement Officer and that the vessel is detained under the powers conferred by CriJICA until the notice is withdrawn by the service of a further notice in writing, signed by an enforcement officer.

Incoming Request to board a British ship 9. MACC to add para about procedures to be followed?

20_E borders: An overview of the legislative framework
E borders envisages the acquisition and sharing of passenger, crew, freight and service information in respect of aircraft, ships and trains entering and leaving the UK (and in some cases ships and aircraft travelling within the UK) by and between the UK Border Agency (UKBA), the police and HMRC (collectively, the border agencies). The information will be shared within ”e-boc”, a single database which will be accessed by the border agencies. The amount of data that can be acquired varies between each of the border agencies (depending on their needs). Each border agency runs the data they acquire against their warnings lists and then shares the data and the results of its tests with the other border agencies. The policy objective is to target and coordinate better the activity of the border agencies in relation to persons entering and leaving the UK. Data Acquisition UKBA’s powers to acquire passenger, crew and service data are set out in paragraphs 27 and 27B of Schedule 2 to the Immigration Act 1971 (which were amended by the IAN Act 2006). They apply only in respect of ships and aircraft arriving in or leaving the UK (but see below in relation to Channel Tunnel trains). Under paragraph 27 UKBA has the power to require a passenger list and particulars of crew members. Under paragraph 27B UKBA has the power to require passenger and service information. The specific data that can be requested is specified in the Immigration and Police (Passenger, Crew and Service Information) Order 2008 (S.I. 2008/5) which came into force on 1 March 2008. Broadly speaking the order specifies Advance Passenger Information (API) in respect of both crew and passengers, Passenger Name Record data (PNR) in respect of passengers only and service data.1 Broadly speaking, API and service data must be provided on request (unless it is provided before a particular point in time) whereas PNR data need only be provided to the extent to which it’s known to the carrier. It is an offence to, without reasonable excuse, fail to provide data on request (section 27(b)(iv) of the Immigration Act 1971). The police powers to acquire passenger, crew and service data are set out in section 32 of the IAN Act 2006. They apply only in respect of ships and aircraft arriving in or leaving the UK (but see below in relation to Channel Tunnel trains). The specific data that can be requested is also specified in the Immigration and Police (Passenger, Crew and Service Information) Order 2008 (S.I. 2008/5) which came into force on 1 March 2008. Broadly speaking the order specifies Advance Passenger Information (API) in respect of both crew and passengers, Passenger Name Record data (PNR) in respect of both crew and passengers and service data.2 Broadly speaking, API and service data must be provided on request (unless it is provided before a particular point in time) whereas PNR data need only be provided to the extent to which it’s known to the carrier. It is an offence to, without reasonable excuse, fail to provide data on request (section 33 of the IAN Act 2006).

Before these provisions were amended by the IAN Act 2006, UKBA had powers to obtain most API and a small number of PNR elements in respect of passengers arriving or leaving the UK by air or by sea (paragraph 27B of Schedule 2 to the 1971 Act and S.I. 2000/912). They also had powers to acquire a list of passengers and particulars of crew on a ship or aircraft which is arriving in (not leaving) the UK (paragraph 27 of Schedule 2 to the 1971 Act and S.I. 1972/1667). The latter power only applied to ships which arrive in the UK from outside the common travel area but covered aircraft which arrive in the UK from outside the UK and the islands. Limitations applied in respect of citizens of the Republic of Ireland and flights from the Republic of Ireland to the UK. 2 Before the IAN Act 2006 the police had no general powers to obtain passenger, crew and service data from ships and aircraft entering the UK except under terrorism legislation.
1

When section 14 of the Police and Justice Act 2006 is commenced (anticipated October 2009) section 32 will be amended to also permit the acquisition of passenger, crew and service data in respect of internal UK flights and voyages. At present it is anticipated that S.I. 2008/5 would be amended to specify the data that would be obtained in respect of flights and voyages between Northern Ireland and mainland UK only. Section 33 of the IAN Act 2006 also provides the police with a power to obtain information relating to freight in respect of ships, aircraft and vehicles arriving or leaving the UK. This is proving problematic but may be commenced in October 2009. The HMRC have extensive data acquisition powers under a direction under section 35(1) of the Customs and Excise Management Act 1979. Both UKBA and the police can also acquire this data in respect of trains arriving in or leaving the UK via the Channel Tunnel. This is achieved by the Channel Tunnel (International Arrangements and Miscellaneous Provisions) (Amendment) Order 2007 (S.I. 2007/3579) which is made under section 11 of the Channel Tunnel Act 1987. That order enabled S.I. 2008/5 to specify the data that can be acquired in respect of Channel Tunnel trains as well as ships and aircraft arriving in and leaving the UK. Data Sharing Section 36 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) requires the border agencies to share information which (a) is obtained under one of a number of specified powers and which relates to passenger, crew or freight on a ship or aircraft or to flights/voyages or (b) relates to specified matters in respect of travel or freight. The Immigration, Asylum and Nationality Act 2006 (Duty to Share Information and Disclosure of Information for Security Purposes) Order 2008 (S.I. 2008/539) specifies those powers and matters and came into force on 1 March 2008. The Channel Tunnel (International Arrangements and Miscellaneous Provisions) (Amendment) Order 2007 enabled S.I. 2008/539 to specify the data that can be acquired in respect of Channel Tunnel trains as well as ships and aircraft arriving in and leaving the UK. A code of practice under section 37 of the 2006 Act governs the sharing of this data and can be accessed at: http://www.bia.homeoffice.gov.uk/sitecontent/documents/managingourborders/eborder s/codeofpractice/ . It was laid before Parliament and then brought into force on 1 March 2008 by the Immigration, Asylum and Nationality Act 2006 (Data Sharing code of Practice) Order 2008. Gateways and common law powers Section 38 of the IAN Act 2006 provided a gateway for any of the border agencies to share information with the security and intelligence agencies which (a) is obtained under one of a number of specified powers and which relates to passenger, crew or freight on a ship or aircraft or to flights/voyages or (b) relates to specified matters in respect of travel or freight. The Immigration, Asylum and Nationality Act 2006 (Duty to Share Information and Disclosure of Information for Security Purposes) Order 2008 (S.I. 2008/539) specified the same powers and matters for this purpose as under section 36 of the IAN Act 2006 (although there were some exceptions which applied in respect of sharing under section 36 which did not apply under section 38 (article 3(2) of the order)). However, section 38 was repealed by section 20 of the Counter-Terrorism Act 2008 and section 19 of the 2008 Act provides a wider gateway to share with the security and intelligence agencies.

Section 39 of the IAN Act 2006 provides a power for a chief officer of police to disclose information obtained under section 32 or 33 of that Act to overseas law enforcement agencies. Section 21 of the Immigration and Asylum Act 1999 provides a general gateway for the Secretary of State to provide information to certain persons. HOLAB has taken a view that UKBA retains its common law powers to share data acquired under section 36 but recognises there are risks with this approach.

January 2009

Guidance Note

20_INTERNATIONAL TRAVEL BANS
Relevant Legislation   

Immigration Act 1971 (as amended by Section 8 of Immigration and Asylum Act 1999)1 Immigration (Designation of Travel Bans) Order 2000 (S.I. 2000/2724) The Immigration (Designation Of Travel Bans) (Amendment) Order 2008 (S.I. 2008/3052)

Background 1. The United Nations and European Union member states agree and impose, inter alia, travel bans restricting the movement of individuals between member countries. The individuals restricted in this way are typically associated with regimes deemed not to adhere to international standards or groups which are proscribed by the UN/EU. The United Nations’ Security Council will agree a UN Resolution; and the EU, an instrument of the Council of the European Union to this effect. Both require Member States of the UN or the EU to implement necessary measures restricting those individuals entry to or transit through their territory except in very limited circumstances.

2.

3.

Giving effect to International Travel Bans 4. Section 8B of the Immigration Act 1971 (as inserted by Section 8 of Immigration and Asylum Act 1999) provides for the exclusion from the United Kingdom of individuals named under international obligations. Such international obligations are given effect domestically by designation pursuant to Statutory Order under s.8B(5) of the 1971 Act. The Secretary of State designates an instrument if it is a resolution of the Security Council of the UN or an instrument made by the Council of the European Union2 and it requires or recommends a person is not admitted to the UK.

5.

1 2

Section 8B, Immigration Act 1971. Other international travel restrictions, such as Commonwealth restrictions, cannot be designated in this way.

1

Guidance Note 6. The Immigration (Designation of Travel Bans) Order 2000 (“the 2000 Order”) is made pursuant to Section 8B(7) of the Immigration Act 1971 and came into force on 10th October 2000. The Schedule to the 2000 Order (as amended) lists those extant international instruments naming individuals who are to be denied entry or transit through the UK on the basis of the travel ban. The Schedule is updated annually in order to take account of changes to the various travel restrictions, including the lists of designated persons. 3

7.

Effect of Designation 8. The effect of designating instruments imposing international travel bans in an Order under section 8B of the 1971 Act is that, unless one of the exemptions set out in Article 3 of the 2000 Order applies, a person named by or described in a designated travel ban is an excluded person and must be refused leave to enter or remain in the UK, including transit through the UK. Any existing leave is automatically cancelled, and any exemption from immigration control e.g. as a diplomat, ceases.

9.

Refugee and ECHR exemptions 10. The 2000 Order provides exemptions to ensure that the cancellation or refusal of leave would not apply in any case where their effect would be contrary to the UK’s Refugee and ECHR Convention obligations.

02/11/2009

3

In addition, provisions in the Immigration Rules enable a person not yet designated under the 2000 Order to be refused entry to the UK, or to have their visa revoked, on the basis that his exclusion from the UK is conducive to the public good.

2

22_IMMIGRATION APPEALS

2005/2006

Overview of the session
• Is there a right of appeal? • What kind of appeal?
– Grounds

– In or out of country

• The structure of the appeal system
– Changes under the 2004 Act

• Jurisdictional issues
– Error of law – Error of fact – Miftari

• Any questions?

The purpose of the statutory appeal system
• To allow people to challenge decisions made in relation to their immigration status • To provide a system whereby such decisions are considered by a specialist body with relevant expertise (the Asylum and Immigration Tribunal) • To provide a single right of appeal at which all issues relating to a person’s immigration status can be considered • To ensure that where an appellant has no basis for being in the country he can be removed at the end of the process

Three key questions which should always be addressed:
• • • Is there a right of appeal? What can be argued in the appeal? Where can the appeal be brought?

Is there a right of appeal?
• Look at the date of the decision to determine which statutory scheme is applicable • If the decision was taken after the 1.4.03 the Nationality, Immigration and Asylum Act 2002

Art. 3 Nationality, Immigration and Asylum Act 2002 (Commencement No 4) Order 2003)
applies ( • Section 82(2) lists those decisions which attract a right of appeal to the Asylum and Immigration Tribunal (‘immigration decisions’)

Is there a right of appeal?
• Bear in mind the possibility of an upgrade appeal under section 83 where asylum is refused but leave of more than 12 months is granted • EEA nationals are governed by separate regime (Immigration (European Economic Area) Regulations 2000) • Has a certificate been issued under s.96? If so there is no right of appeal • Has a certificate been issued under section 97? If so the appeal is to SIAC • If there is a right of appeal then the affected party must be given notice of the relevant decision (Immigration (Notices) Regulations 2003)

Grounds of appeal
• Listed in Section 84(1) of the 2002 Act
– Not in accordance with the immigration rules – A discretion under the rules should have been exercised differently – Racially discriminatory – Removal in consequence of the decision would breach the ECHR or the Refugee Convention – Not otherwise in accordance with the law – That the decision breaches the appellant’s rights under the Community Treaties in respect of entry into or residence in the UK

Restrictions on the grounds of appeal
• The general position under the 2002 Act is that where an immigration decision has been made any of the grounds in s.84(1) can be advanced. There are exception to this. Has consequence for the type of notice provided- need not set out appeal rights. Refusal of EC, LTE and variation cases:
– Where the decision has been taken for one of the reasons listed in section 88(2) of the Act (mandatory grounds for refusal under the rules)


In LTE cases
– Where LTE was sought as a visitor or a student (on certain course) but has no entry clearance (s.89)

Restrictions on the grounds of appeal
• In entry clearance cases:
– Where entry clearance is sought as a non family visitor (s.90) – Where entry clearance is sought as a student in certain circumstances (s.91) – Where entry clearance is sought in a category listed in regulations made under s.88A

• In such cases the appellant is limited to arguing that the decision:
– Was racially discriminatory – Breached the appellant’s human rights – That removal would breach the Refugee Convention

Where can the appeal be brought?
• Out of country unless section 92 applies • Broadly speaking two main categories:
– Where the nature of the decision is such that the appeal should be in country e.g. where an application for FLTR is refuse or leave is curtailed; – Where an asylum or human rights claim has been made. – N.B. EEA ground but does not arise very often

Where an asylum or human rights claim has been made the appeal will still be out of country if the Secretary of State certifies that the claim is ‘clearly unfounded’ (s.94).

• Once a decision under section 82(2), 83 or the EEA Regulations has been made IND must serve a From decision to appeal notice of the decision which sets out the right of appeal and the grounds on which the appeal can be brought • The affected party then has to lodge a notice of appeal within the time limits specified in the Asylum and Immigration Tribunal (Procedure) Rules 2005:
– 5 days if detained – 10 days if the appeal is in country – 28 days if decision received out of country (see r.7)

• The appeal papers are then sent to IND

Determining the appeal
• • The Tribunal is required to consider and determine all grounds of appeal which are disclosed in response to the one stop notice by the appellant (s.85(2)) The Tribunal must allow the appeal if it decides that:
– The decision was not in accordance with the law – A discretion under the rules should have been exercised differently (s.86)

A direction can be made to give effect to the determination (s.87) but see Boafo and Saribal A determination is sent to both the parties not later than 10 days after the hearing (r.22)

The old system • Previously a two stage tribunal system

Structure of the appeal system

– Appeal to an adjudicator – Further appeal to the Immigration Appeal Tribunal with the permission of the Tribunal (High Court review of a refusal of permission)

Appeals to the IAT could be brought on an error of fact
– CA in Subesh & Ors [2004] EWCA Civ 56 defined an error in this context as being where the IAT “concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view.”

Structure of the appeal system
• • Changes in the political climate in view of the increase in asylum applications lead to a desire to ensure that appeals could be dealt with more efficiently Nationality, Immigration and Asylum Act 2002
– Appeals to the IAT to be restricted to cases where the adjudicator considering the appeal erred in law; – The introduction of the SR process for reviewing refusal of PTA to the IAT

• Asylum and Immigration (Treatment of Claimants etc.) Act 2004
– First idea was to retain the two tier system but to attempt to oust any further review by the courts (the JR ouster). – Compromise lead to the present system which is generously described as a ‘single tier’

The Single Tier
• Introduced by s.26 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. • Amended part 5 of the nationality, asylum and immigration act 2002. The substance of the new scheme contained in ss.103a-103e. • Provided there is a valid appeal before it the AIT will usually list the matter for a case management review hearing. • Important step in the process as the AIT will consider the composition of the panel that will eventually hear the matter. • The method of challenging the resulting determination of the AIT depends upon the composition of the panel which originally heard the appeal. <3LQM or 3+LQM

Onward appeals (<3LQM)
Where the appeal was heard by < 3 legally qualified members‘the reconsideration loop’ • The decision of the Tribunal is challenged by the making of an application for review • An application for review is an application which is considered solely on the papers • What is sought on an application for review is an order for reconsideration (s.103A) • Two tiers within the process of making an application for review: – Firstly the application is considered by a member of the AIT (Para.30 of sched. 2 of the 2004 act). ‘The filter provision’. – If the AIT refuse to make an order for reconsideration then the applicant can make a further application to the high court

Onward appeals (<3 LQM)
Where the appeal was heard by < 3 legally qualified members • In order to make an order for reconsideration the AIT and the High Court must be satisfied that the AIT ‘may have made an error of law’ in determining the appeal and that there is a real possibility that the Tribunal would decide the appeal differently on reconsideration • If they are so satisfied then they must make an order for reconsideration • Where an order for reconsideration is made the appeal goes back to the AIT

Transfer from High court to the Court of Appeal
• In the rare case where an application for review is made to the High Court and the High Court takes the view that the appeal raises a question of law of such importance that it should be decided by the Court of Appeal it may refer the case to the Court of Appeal (s.103C).
– E.g. Zimbabwe litigation

• Member of AIT considering an application for review cannot refer cases in this way (para.30(7) sched.2)

Onward appeals (<3LQM)
Reconsideration by the AIT following an order under s.103A Where the AIT or the High court makes an order for reconsideration under s.103A the AIT must reconsider the appeal in the following two stage manner (r.31): • The first question to be addressed is whether the Tribunal who originally considered the appeal did make a material error of law (‘the first stage’), • If so the Tribunal must then proceed to ‘substitute a fresh decision to allow or dismiss the appeal (‘the second stage’)

Onward appeals (<3LQM)
Reconsideration hearing- ‘the second stage’ • Where the AIT proceeds to the second stage of the reconsideration hearing the presumption is that it will proceed to determine the appeal on the basis of the findings of fact made by the original Tribunal (Practice Direction para. 14.1) • Where the Tribunal decides that it cannot do so it should adjourn for further evidence to be taken. • When the matter is adjourned in this way the Tribunal can transfer the hearing to a different panel of immigration judges

Onward appeals (<3LQM)
Reconsideration hearing- ‘the second stage’ • The adjournment of a hearing does not mean that there is two stages to the appeal and the decision at the first stage of the recosnideration process is not susceptible to JR (Wani [2005] EWHC 2815) • The Tribunal should also not take the adjournment as an indication that all of the findings of fact made by the original Tribunal can necessarily be revisited (YF (precommencement remittal - basis of reconsideration) Eritrea [2005] UKAIT 00126) • Once the second stage is complete the Tribunal serves its determination on both parties as before • Appeal against this determination can only be to the Court of Appeal

Onward appeals: 3LQM or following reconsideration
• Where the original appeal has been considered by three or more legally qualified members (‘a legal panel’) challenge is always to the Court of Appeal (s.103E) Where the Tribunal have reconsidered a decision following an order under section 103A appeal is also to the Court of Appeal (s.103B) In both cases permission can either be granted by the AIT or the CA The Court of Appeal’s jurisdiction is obviously restricted to considering if the Tribunal erred in law

• •

Powers of the Court of Appeal
• The Court of Appeal has the following powers to dispose of immigration appeals before it:
– – – – – – Affirm AIT decision Make any decision which AIT could have made Remit to the AIT Affirm a direction under s.87 Vary a direction under s.87 Give a direction the AIT could have given under s.87

Jurisdictional issues
Error of law • Broadly equivalent to grounds for seeking judicial review • Useful list of common examples in para. 9 of the CA judgment in R(Iran) & Ors [2005] • Considerable latitude in the way the Court of Appeal approaches the issue • Error has to be material

Error of fact as error of law
• Concept finally endorsed by CA in E&R [2003] • In the following restricted circumstances:
– – – – Mistake as to an existing fact The fact or evidence in question must be uncontentious and objectively verifiable The appellant must not have been responsible for mistake The mistake must have been material to the outcome

Jurisdictional issues
‘Miftari’ • Following the decision of the Court of Appeal in Miftari it is clear that in order for the Tribunal on reconsideration or the Court of Appeal to exercise jurisdiction there must not only be an error of law in the Tribunal’s determination, but that error must have been correctly identified in the grounds on which permission was sought. • The error of law must also be expressly identified by the AIT • Caused problems when POs and AIT were getting used to the change to the error of law jurisdiction

Jurisdictional issues
‘Miftari’ • Approach the Court of Appeal takes to construction of the grounds of appeal is rather difficult to predict • In ZT v SSHD [2005] EWCA 1421 Buxton LJ stated that:
“This court has however also stressed that it will be reluctant to see a case fail purely on an issue of jurisdiction… if it is possible on a fair reading to extract a point of law from the grounds of appeal.”

• Arguable as to whether this is always the case

END

23_CARRIER’S LIABILITY
Relevant Legislation  The Immigration and Asylum Act 1999 (“the 1999 Act”)1 as amended by the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) The Carriers’ Liability Regulations 2002 (as amended)2 Council Directive 2001/51/EC

 

Background 1. The generic reference to Carrier’s Liability refers to two3 broad areas: (a) the first issue is the liability of carriers for undocumented or inadequately documented passengers; and (b) the second ground for liability is in respect of clandestine entrants. 2. Part II of the 1999 Act, as amended by section 125 and Schedule 8 of the 2002 Act, allows the Secretary of State to impose penalties or charges on carriers for clandestine entrants and improperly documented passengers. The penalties imposed must comply with Council Directive 2001/51/EC which stipulates either a maximum charge of not less than 5,000 euros (or equivalent national currency), or a minimum of not less than 3,000 euros . Under this Directive sanctions must be “dissuasive, effective and proportionate”.

Passengers without proper documents (section 40, 1999 Act) 3. The Secretary of State can impose a penalty on a carrier when a person on arrival in the United Kingdom by ship or aircraft is required to produce a valid identity document4 and fails to do so, or when a person who is required under the Immigration Rules to obtain permission before arrival does not have such permission (which should include a person who requires permission to transit the United Kingdom). The penalty of up to £2,000 is set out in section 40(2) of the 1999 Act, and there is a power to substitute the sum by order under subsection (10).

4.

1 2

Part II. 2002 No. 2817 3 The liability of carriers to remove people from the United Kingdom, and in certain circumstances to pay the costs of their detention pending removal is dealt with in section 4 and 5 and Schedule 2 and 3 of the Immigration Act 1971. This is beyond the scope of this Note. 4 An identity document is a passport or other identity document establishing identity and nationality.

1

5.

The Home Office has been considering a two-tier fixed charge to replace the current single charge to reflect the value they attribute to their Approved Gate Check (AGC) system5. Pursuant to section 40(7), it is possible by order to extend this provision to a person who arrives it the United Kingdom by train and to make consequential amendments to the provision. The penalty is imposed where the required document is not produced on arrival. However, if the carrier demonstrates the production of a bona fide document to him, his employee or agent by the individual on embarking the vessel (see section 40(4)) but subsequently destroys it en route to the United Kingdom, the carrier does not incur liability. In practice this means that carriers can either take copies of documents on embarkation or operate an Approved Gate Check procedure. For these purposes, a carrier shall be entitled to regard a document as valid unless it is reasonably apparent that it is false, or that it does not relate to the person who produced it (see section 40(5)). The courts have interpreted the “reasonably apparent” test as meaning that forgeries must be of “a standard which a trained representative of the carrying company, examining the document carefully but briefly and without the use of technological aids could reasonably be expected to detect”.

6.

7. 8.

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Clandestine entrants (Section 32 of the 1999 Act) 10. The Secretary of State is able to impose a penalty on a carrier who is responsible for a clandestine entrant. The penalty that the Secretary of State may impose is currently not fixed, but there is a prescribed maximum (see section 32(2A) of the 1999 Act). It is currently set at £2,000.6 11. The penalty may be imposed on more than one responsible person, as long as it does not in aggregate amount to more than the prescribed maximum. The maximum penalty is prescribed by statutory instrument, subject to the negative resolution procedure, and is currently set at £4,000.7 12. The definition of a clandestine entrant is in section 32(1) of the 1999 Act, including the relevant interpretations in section 32(10) and section 43. In broad terms the a person is a clandestine entrant if he arrives in the United Kingdom concealed in a vehicle, ship, aircraft etc

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AGC status is granted in return for an audited high standard of document checking and security procedures at a port of embarkation, a good level of co-operation from the carrier, and a satisfactory record in respect of its liabilities. If UKBA prescribed measures are in place, a limited presumption that satisfactory checks have been carried out applies. 6 The Carriers’ Liability Regulations 2002, 2002 No. 2817 7 The Carriers’ Liability Regulations 2002, 2002 No. 2817

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13. The Secretary of State must have regard to a code of practice specifying matters that will be considered by him in determining the amount of the penalty. A draft of the code, and any revisions to it, are be laid before Parliament before coming into force (see section 32A of the 1999 Act, as amended by the Nationality, Immigration and Asylum Act 2002 section 125, Schedule 8, paragraphs 1, 3). 14. It is not be possible to impose a penalty if any of the carriers responsible has a defence in relation to that clandestine entrant. The defences are set out in section 34 of the 1999 Act. 15. Under section 34(3) of the 1999 Act, where it is alleged a person is liable to a penalty under section 32 for bringing a clandestine entrant to the United Kingdom, it is a defence to show that:  he did not know and had no reasonable grounds for suspecting that a clandestine entrant was, or might be, concealed in the transporter;  there was an effective system in operation in relation to the transporter to prevent the carriage of clandestine entrants; and  on the occasion concerned, the person or persons responsible for operating that system did so properly. 16. A Code of Practice, which is made under section 33 of the 1999 Act, sets out the measures to be taken and the procedures to be followed by persons operating a system for preventing the carriage of clandestine entrants to the United Kingdom, in respect of vehicles. Regard will be had to this Code of Practice in determining whether such a system is effective (section 34(4) of the 1999 Act). 02/11/2009

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24_ILLEGAL WORKING
Relevant Legislation    The Immigration, Asylum and Nationality Act 2006 (the "the 2006 Act”1) The Immigration (Restrictions on Employment) Order 2007 (S.I. 2007/3290) (the "2007 Order") The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007

Background 1. The UKBA illegal working regimes tackling illegal working are provided for in the Immigration and Nationality Act 2006 (the 2006 Act) which came into force on 29 February 2008. Prior to this, illegal working was covered by the Asylum and Immigration Act 1996. The scheme creates both civil and criminal liability and focuses on the „employer‟ rather than the individual who is working without permission/clearance. In respect of both types of liability, it should be noted that the provisions in the 2006 Act only concern persons subject to immigration control, which in each case means a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom. 2

2.

3.

Illegal working: Civil Liability Regime Outline of Regime 4. Civil liability attaches to an „employer‟ of a person who is subject to immigration control and who does not have prior permission (expressly or by operation of law) to undertake the work he is employed to perform. A penalty of up to £10,000 in respect of each illegal worker can be levied against an employer.

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Sections 15-25. EEA nationals are not included and are dealt with separately in the Accession (Immigration and Worker Registration) Regulations 20042 and the Accession (Immigration and Worker Authorisation) Regulations 20062 (together, the “EEA Regulations”).

1

5.

A defence (or „excuse‟) to any Notice of Potential Liability (NOPL) can be relied upon by the employer if he/she can demonstrate they took steps before the employment commenced (and in certain instances at 12 monthly intervals thereafter) to confirm the employee was being employed lawfully. Such measures include checking and copying certain specified documents relating to the employee. If a penalty is imposed – i.e. the NOPL results in a Notice of Liability (NOL) the employer can challenge the imposition of the penalty and/or the level at which it has been set by raising an objection with the Secretary of State and by appealing the UKBA decision to the County Court.

6.

Key legal issues 7. The regime has now been in place for almost two years. It‟s possible to identify a number of legal issues that have arisen during this time: (a) maintaining the distinction between civil and criminal penalties3

(b) Definition of employer UKBA should not “pierce the corporate veil” where the employer is a limited liability company (Kungv SSHD (Birmingham County Court)); (c) Unpaid employment Evidence of remuneration is necessary for paid employment (Bulut v SSHD (Northampton County Court)) (d) Ability to pay Consideration of means (ability to pay) is an important element of setting the penalty (Bakabala v SSHD (Cardiff County Court) Miah and Amin v SSHD (Ipswich County Court)) Facts and figures 29 February 2008 - 31 August 2009:       3509 Notices of Potential Liability (NOPLs) issued by enforcement staff; 2734 NOLs (with a potential value of £26,126,250) issued; 72% served upon owners of restaurants and takeaways; 1951 objections have been received In 60% of these cases the initial decision were upheld; 288 appeals were lodged by employers with the County/Sheriff‟s Courts. 179 appeals have concluded, of which 108 (60%) resulted in a favourable outcome for the UKBA; and A total of £2,559,771.42 in penalty payments has been recovered, with 230 employers paying penalties in full

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See separate note on Civil Penalty Regime and compatibility with Article 6 ECHR.

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Illegal working: Criminal Liability 8. A new criminal offence of knowingly employing an illegal worker was created under the 2006 Act. This new offence (unlike the one it replaced under section 8 of the Asylum and Immigration Act 1996) carries a maximum custodial sentence. A person commits a criminal offence if he employs another person (employee) if he knows that the employee is an adult subject to immigration control and he is not entitled to carry out the paid employment he is being employed to undertake (Section 21 of the 2006 Act). A person guilty of an offence of knowingly employing an individual who does not have the requisite permission to carry out that employment, shall be liable: on summary conviction to a maximum of 12 months imprisonment in England & Wales4; or on indictment to a maximum of 2 years imprisonment and/or a fine.

9.

10. An offence under this section is treated as a relevant offence for the purposes of sections 28B & D of the IA 1971 (search, entry and arrest) and an offence under Part III of the 1971 Act (Criminal Proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest)- s.21(3) IANA 2006 11. Powers of arrest with warrant and search for personnel records as contained in s.8 AIA 1996 granted for the purposes of s21 of IANA 2006 – ss.27 - 28 UK Borders Act 2007 („UKBA 2007‟) Offence: bodies corporate etc. 12. For the purposes of s.21(1) a body shall be treated as knowing a fact about an employee if a person who has responsibility within the body for that aspect of the employment knows the fact - s.22(1) IANA 2006 13. If an offence under section 21(1) is committed by a body corporate with the consent or connivance of an officer of the body, the officer as well as the body shall be treated as having committed an offence. A reference to an officer or body includes a reference to a director, manager or secretary, a person purporting to act as such and if the affairs of the body are managed by its members, its members. Same in relation to partnerships - s.22 (2)-(4)) IANA 2006

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s.21(2) IANA 2006

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Operational/Policy Guidance  The UKBA web page on Preventing Illegal Working (http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/) has the following useful publications: Comprehensive guidance for employers on preventing illegal working, February 2008; Summary guidance for employers on preventing illegal working, April 2009; Civil penalties - code of practice, February 20085; Avoiding unlawful discrimination - code of practice6, February 2008; and New measures for preventing illegal migrant working in the UK What employers need to know, March 2009.

The employing migrant workers pages of the Business Link: www.businesslink.gov.uk.

02/11/2009

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Pursuant to section 19 of the 2006 Act Pursuant to section 23 of the 2006 Act.

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Guidance Note: Is Deportation Compatible with Article 8 ECHR?
This guidance note applies to the deportation of non-EEA nationals only. (a) ECtHR Factors to be taken into consideration when considering proportionality in criminal deportation case (Uner v Netherlands 2006 at 57-58):           Nature and seriousness of offence Length of applicant‟s stay in the country Time elapsed since offence committed and conduct during that period Nationalities of various persons Applicant‟s family situation (eg length of marriage, effectiveness of family life) Whether spouse knew of offence when entered into family relationship Whether there are children and if so what age Seriousness of difficulties which spouse likely to encounter on deportation Best interests and wellbeing of children, in particular seriousness of difficulties they are likely to encounter on deportation Solidity of social, cultural and family ties with host country and country of destination

Further broad principles:    Article 8 of the ECHR does not provide a right to an individual to choose where he exercises his family or private life (eg Boultif v Switzerland 2001 at 39). Deportation may amount to a legitimate interference with article 8 where it is in accordance with the law, serves a legitimate aim and is proportionate to that aim. The deportation must strike a fair balance between the applicant‟s right to respect for his/her family life or private life and the prevention of disorder or crime: Boultif v Switzerland 2001 at 47 (family life); Mazlov v Austria 2008 at 64-65 (family and private life) It‟s not a double penalty to deport following sentence and it‟s open to states to deport to protect the public in which cases deportation is preventative rather than punitive: Uner v Netherlands 2006 at 56 Age at which crimes committed are relevant, it being more difficult to deport where crimes can be put down to juvenile delinquency: Maslov v Austria 2008; Moustaquim v Belgium 1991 at 44 Very serious violent offences can justify deportation even if they were committed by a minor: Bouchelkia v France 1997 (aggravated rape, age 17); Hizir Kilic v Denmark 2007 and Ferhat Kilic v Denmark 2007 (attempted robbery, aggravated assault and manslaughter aged 16 and 17) Period of time over which crimes committed are relevant, it being easier to deport where crimes, including non-violent crimes, have been committed over a long period of time: Grant v UK 2008 1 or 2 crimes can be sufficient: Uner v Netherlands 2006 (manslaughter and assault) Length of expulsion/deportation is relevant, it being more difficult to justify very lengthy expulsion: eg Uner v Netherlands 2006 (10 years acceptable)

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Good behaviour between the time the offence was committed and the deportation will be taken into account by the ECtHR, including behaviour after the deportation decision was taken: Maslov v Austria 2008 at 95 Proximity to having the nationality of the host state is of relevance when determining ties with that state: Beldjoudi v France 1992 at 77 The ECtHR will accept evidence regarding why particular (non-violent) crimes are considered serious enough to merit deportation: Amrollahi v Denmark 2002 at 37 (drug trafficking); Dalia v France 1998 (drug trafficking)

(b) Domestic law  When determining whether there is a breach of article 8 the courts must consider (a) whether proposed removal/deportation will interfere with the individual‟s private or family life (b) whether the interference will be grave enough to constitute an interference with article 8 (c) whether any such interference is in accordance with the law (d) whether any such interference is necessary in a democratic society for a legitimate aim (e) whether the interference is proportionate to the legitimate aim: R v SSHD (Razgar) [2004] UKHL 27 at para 17 (Dublin Convention removal) Whether deportation will constitute a proportionate interference with article 8 is very fact/case specific: Senthura v SSHD [2004] EWCA Civ 950 para 15 The risk of re-offending (and impact on his family) must be taken into account: AM (Jamaica) v SSHD [2008] EWCA Civ 1408 However, deportation can also serve to deter and to express society‟s revulsion at the offence: o if the individual commits a very serious crime the public interest side of the balance includes the public policy need to deter and express society‟s revulsion at the seriousness of the criminality, in the first instance an assessment for the SSHD and an assessment of which the adjudicator should take proper account. The risk of re-offending is a factor but for very serious crimes a low risk of re-offending is not the most important public interest factor: N (Kenya) v SSHD [2004] EWCA Civ 1094 paras 64-65. See also JS (Colombia) v SSHD [2008] EWCA Civ 1238 para 32. o Similarly, where the offence was very serious and the person is not likely to re-offend it is possible for “the sole or principal justification for the … deportation … [to be] the deterrence of others”: Samaroo and Sezek [2001] EWCA Civ 1139 at 38-43. (Deterrence of others would itself serve the future protection of the public.) But Macdonald thinks this could be difficult to justify under article 8 ECHR: Macdonald, 7th ed, para 15.19. And it would not be possible to deport an EEA national for solely deterrent purposes: Directive 2004/38/EC article 27(2); S.I. 2006/1003 reg 21(5). o When considering whether removal/deportation constitutes a proportionate interference with article 8 there will “in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be

  

allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on.” Huang v SSHD [2007] UKHL 11 para 16 (refusal of leave) Delay in making the immigration decision can have an impact when determining the proportionality of any interference with article 8 because (a) the applicant can develop closer ties with the UK (b) tentative relationships can become more settled with an expectation that can remain (c) delay can reduce the weight to be otherwise accorded to the requirements of a firm and fair immigration control if it is shown that the delay results in a dysfunctional system yielding unpredictable, inconsistent and unfair outcomes: EB (Kosovo) v SSHD [2008] UKHL 41 paras 14-16. In assessing the proportionality of any interference with family life, the rights of the entire family need to be considered. Article 8 rights of family members who are not party to the proceedings should therefore also form part of the proportionality assessment: Beoku-Betts v SSHD [2008] UKHL 39 at 43. It will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow or if the order will sever a genuine and subsisting relationship between parent and child: EB (Kosovo) v SSHD [2008] UKHL 41 para 12. But even if it is unreasonable for a spouse to follow the deported spouse, deportation can be proportionate. The court must evaluate the whole picture including the seriousness of the offence committed and the Secretary of State‟s right to represent the public interest in the deterrence and prevention and abhorrence of such crime: DS (India) v SSHD [2009] EWCA Civ 544.

June 2009

Annex Facts of key individual ECtHR cases
Uner v Netherlands 2006 Proportionate interference: conviction for manslaughter and assault; lived in Netherlands since aged 12, had 2 children with partner, no longer cohabiting, had some social and cultural/linguistic ties to Turkey, practical difficulties in wife joining him in Turkey. 10 year expulsion order proportionate given the seriousness of the offences Boultif v Switzerland (2001) Disproportionate interference: „comparatively limited danger to public order‟ following unlawful possession of weapons, robbery, damage to property, assault and theft; followed by 6 years good behaviour and exemplary behaviour/early release in prison; „serious impediment to establishing a family life since practically impossible‟ to live with family outside Switzerland (wife spoke French but would face difficulties moving to Algeria and not clear if could relocate to Italy). Maslov v Austria at 81 Disproportionate interference: Found that 10 year expulsion was disproportionate to the offences committed. Although he had been convicted of 22 offences including aggravated gang burglary, extortion and assault, his offences had been committed when he was 14-15 years and with one minor exception did not involve violence so Grand Chamber regarded as acts of juvenile delinquency. Grant v UK 2009 Proportionate interference: in UK for 34 years; 3 children with 3 British nationals; never lived with any of children but in regular contact; convicted of 52 offences between 1991 and 2006 but none were serious and majority were non-violent and those which were attracted sentences of 12 months or less; cannot ignore time span; can‟t say „juvenile delinquency‟; family has some ties with Jamaica and can‟t say so estranged from Jamaica that couldn‟t settle there.

Guidance Note: Is Deportation Conducive to the Public Good?
This note applies to the deportation of non-EEA nationals only. This note addresses whether a person‟s deportation is conducive to the public good in the criminality context where the person does not fall within the automatic deportation provisions:   Automatic deportations will be covered in the HOLAB Guidance Note: Automatic Deportations; Deportations on national security and/or unacceptable behaviour grounds are covered in the SIAC Guidance Note: Legal test for non-conducive to the public good: deportation, exclusion and deprivation

The approach of the courts is to consider whether the appellant is liable to deportation and then whether deportation would breach the appellant‟s human rights: EO (Turkey) v SSHD [2008] EWCA Civ 671 para 34. In considering whether deportation would breach a person‟s human rights the following HOLAB guidance notes may be of relevance:   HOLAB Guidance Note: Is deportation compatible with article 8 ECHR? SIAC Guidance Note: Legal test for safety on return: deportation

Power to deport where deportation is conducive to the public good The Secretary of State has the power to deport a non-national if she deems his deportation conducive to the public good (s3(5) of the Immigration Act 1971).  An individual has a right of appeal which materialises once he is served with a notice of intention to deport: s82(2)(j) of the Nationality, Immigration and Asylum Act 2002. A deportation order invalidates any leave given to him: s5(1) Immigration Act 1971.

What is the public good?  The Secretary of State has a wide discretion to determine when deportation is conducive to the public good. But Home Office guidance may restrict that discretion and it should be read in full when taking deportation decisions. Public good/public interest engage broad issues of social cohesion and pubic confidence in the administration of the system by which control is exercised over non-nationals: N (Kenya) v SSHD [2004] EWCA Civ 1094 para 83 They include an element of deterrence that a consequence of serious crime may well be deportation: N (Kenya) v SSHD [2004] EWCA Civ 1094 para 83 The risk of re-offending is one facet of public interest but in the case of very serious crime not the most important facet, deterrence and an expression of society‟s revulsion at serious crimes being other important facets: N (Kenya) v SSHD [2004] EWCA Civ 1094 paras 64-65; also OH (Serbia) [2008] EWCA Civ 694 para 15

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Who determines the public good?   The Secretary of State principally determines what is in the public interest. The adjudicator must then reach his own assessment but cannot do so without understanding and giving weight to matters which the SSHD was entitled or required to take into account when considering the public good: N (Kenya) [2004] EWCA Civ 1094 at 83 The adjudicator should take proper account of the SSHD‟s view of public interest: o The adjudicator could allow the appeal if he considered that the SSHD‟s discretion should have been exercised differently but he does not have expertise in judging how effective a deterrent is a social, economic and political policy of deporting foreign nationals who have been convicted of serious offences: N (Kenya) [2004] EWCA Civ 1094 at 54 (grave crimes: abduction, threats to kill, 3 rapes, false imprisonment); see also para 69. See also: Samaroo v SSHD [2001] EWCA Civ 1139 at paras 25 and 36; EO Turkey [2008] EWCA Civ 671 at 20 (more general application); o It‟s wrong in principle to fail to attach proper weight to the SSHD‟s policy in relation to deportation. Where she has taken the view, in the public interest, that crimes of violence such as that committed by the appellant (manslaughter) are sufficiently serious to warrant deportation, “her assessment had to be taken as a given, unless it is palpably wrong.”: OP Jamaica [2008] EWCA Civ 440 paras 24, 28-29. o The courts should afford a significant margin of discretion to the SSHD, but can interfere if considers weight accorded to a factor was unfair and unreasonable: Samaroo and Sezek [2001] EWCA Civ 1139 at 39 o In national security cases the SSHD is „undoubtedly in the best position to judge what NS requires even if his decision is open to review‟ Rehman v SSHD [2001] UKHL 47 at 26 o It is open to the SSHD to determine that certain activities (eg drug trafficking), which are particularly harmful to society, merit deportation: Samaroo and Sezek [2001] EWCA Civ 1139 at 40; D v UK (1997) at para 46 o It can be argued that the SSHD should be given a wide discretion where her decision follows an intelligence led operation by the police and a conclusion by them that deportation is conducive (being argued in Bah, Op Alliance).

When will deportation be conducive to the public good? Question of judgment rather than standard of proof  Any specific acts relied upon as having taken place must be proven on the BoP. But whether a person‟s deportation is conducive to the public good is a question of judgment not of standard of proof. An assessment must be made of the whole picture not simply past acts and it is acceptable to have regard to precautionary and preventative principles rather than to wait for directly harmful activities to take place. Therefore it is possible to conclude that deportation is conducive to the public good in the absence of any such proven act so long as, viewed objectively, it is clear the person‟s deportation is conducive to the public good (in this case, whether he poses a risk to national security).: Rehman v SSHD [2001] UKHL 47. See also Y v SSHD (SIAC) 24 August 2006, paras 110-131.

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What degree of proof/evidence will be required?   More proof is not required the more serious the allegation Re B [2008] UKHL 35 at 13 and 70-72 An allegation can be taken into account even if it is not proven on the BoP and the degree of certainty attached to the allegation forms part of the evaluative process as to whether the person will commit acts in the future which are a danger to national security: Y v SSHD 24 August 2006, paras 110 to 131; see also Rehman v SSHD [2001] UKHL 47. It is possible to draw inferences from known facts even if they could have formed the basis of criminal conviction but conviction was never pursued: Martinez-Toborn v IAT [1998] It is possible to rely on facts which gave rise to an acquittal in criminal proceedings. Deportation doesn‟t require proof beyond all reasonable doubt so it is not a direct challenge to the decision in the criminal trial. Also mere presence at the scene of a crime, whilst insufficient to merit conviction, can demonstrate gang activity (being argued in Vasquez, Op Alliance). Therefore ancillary acts or allegations such as associations and presence at the scene of a crime can be taken into account. Spent convictions can be relied upon where justice requires that: s7(3) ROA 1974 (being argued in Vasquez, Op Alliance) Victim impact assessments can be relied upon in determining the seriousness of the crime and the public good in ending activities of violent street gangs (being argued in Vasquez, Op Alliance)

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When will deportation be conducive to the public good?   A person‟s presence is non conducive if, amongst other things, it gives rise to the potential for disorder: Farrakhan [2002] EWCA Civ 606 An offence which attracts only a minor sentence can justify deportation (eg there could be limited sentencing options) due to a real risk to the public: EO (Turkey) v SSHD [2008] EWCA Civ 671 para 35. A custodial sentence is not necessary: Poku 25 November 2008 (criminal conviction with community service plus police intelligence regarding involvement with violent gang) An offence for theft by a person managing the relevant company‟s accounts justified deportation in OI (Nigeria) [2008] EWCA Civ 1338 (no error of law) The commission of offences abroad may be sufficient to justify deportation so long as it does not constitute disguised extradition: El-Awam (12807) 14 Dec 1995 unreported, see Macdonald, 7th ed. at 15.23.

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Is it necessary to demonstrate propensity to re-offend?  Deportation can be justified where the offence was very serious, the person is not likely to re-offend and “the sole or principal justification for the … deportation … is the deterrence of others”: Samaroo and Sezek [2001] EWCA Civ 1139 at 38-43. See also N (Kenya) v SSHD [2004] EWCA 1094. (Deterrence of others would itself serve the future protection of the public.) Macdonald considers this could be difficult to justify under article 8 ECHR: Macdonald, 7 th ed, para 15.19. And it would not be possible to deport an EEA national for solely deterrent purposes: Directive 2004/38/EC article 27(2); S.I. 2006/1003 reg 21(5).

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Once a propensity to re-offend is established it‟s not necessary to decide whether the offences in question are those which cause such deep revulsion that public policy requires deportation: GO (Nigeria) v SSHD [2007] EWCA Civ 1163

Comments  It is essential that the Secretary of State is able to articulate clearly why the conduct in question renders deportation conducive to the public good. In the Operation Alliance cases the Secretary of State, in an extensive witness statement, highlighted how damaging violent gang culture is and how difficult it is to address. In Poku (25 November 2008) and Wasolua (5 March 2009) the AIT, having heard this evidence, accepted the importance attached to stopping and deterring such activity. In consequence, it agreed with the Secretary of State that deportation would be conducive to the public good. If an individual has been acquitted (or investigated but not prosecuted) and the SSHD seeks to rely on the relevant activity to justify deportation, the SSHD will need to demonstrate why she considers the person has committed those acts. UKBA guidance must be read to ensure that deportation does not contravene that guidance.

June 2009

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