Scottish Human Rights Law Group » Asylum & Immigration Law

Proposal for a Directive on preventing and combating trafficking in human beings and protecting victims

Jennifer Dunlop — Tue, 06 Apr 2010 20:35:56 +0000

“On 29 March 2010 the European Commission tabled a proposal for a new Directive on trafficking in human beings, aimed at further approximating legislation and penalties, ensuring successful prosecution, better protection of and assistance to victims, and prevention of trafficking. It follows up on a previous proposal tabled in 2009. The Directive, if approved, will replace current EU legislation dating from 2002 (Framework Decision 2002/629/JHA).”

The full Europa press release can be found here.

R (K (Iran)) v Secretary of State for the Home Department [2010] EWCA Civ 115

Jennifer Dunlop — Fri, 12 Mar 2010 16:34:40 +0000

The appellant claimed damages arising from the delay in the processing his asylum application. He submitted that the delay caused two types of damage: first, it aggravated his existing psychiatric condition; secondly, he lost the opportunity of presenting his case during a period (a “window of lucidity”), when, it is said, his mental condition was such that he could still have supported it by coherent evidence.

The court held that EU Directive 2004/83, which recognised for the right to asylum as part of EU law did not alter the jurisprudence of the European Court of Human Rights that asylum decisions did not fall within the European Convention on Human Rights 1950 art.6(1), and that a non-citizen had no right under Convention law to claim for damages for the delay in processing his asylum application.

The full report can be viewed here.

R (Boroumand) v Secretary of State for the Home Department [2010] EWHC 225 (Admin)

Jennifer Dunlop — Fri, 12 Mar 2010 16:27:24 +0000

This was an appeal against the deportation of an Iranian national whose application for asylum was refused and whose appeal rights were exhausted by 17 March 2005. He was subsequently convicted of grievous bodily harm. He wished to make a subsequent claim for humanitarian protection, however, the Secretary of State maintained that he was excluded from humanitarian protection due to his conviction for a “serious crime”. A further issue to be considered was whether the Secretary of State’s decision to grant the claimant only six months discretionary leave to remain is a disproportionate interference in his private life under Article 8 of the ECHR.

The court held that the decision on the deportation appeal did not involve a decision on the immigrant’s status and therefore the subsequent refusal of humanitarian protection by the Secretary of State for the Home Department was not unlawful for inconsistency and that there was not a disproportionate interference with his Article 8 rights.

The full report can be viewed here.

KM for Judicial Review of a Decison of the Secretary of State for the Home Department to Detain the Petitioner [2010] CSOH 8

Jennifer Dunlop — Sat, 06 Feb 2010 14:57:33 +0000

The petitioner arrived in the UK in 2000 and was granted asylum. In 2002, he is arrested, but granted Temporary Admission and released from custody subject to reporting conditions which he breaches. In 2004, he is convicted of robbery and sentenced to four years imprisonment. The trial judge recommends deportation noting that there is a high risk of re-offending. The Secretary of State moved to deport the petitioner on conclusion of his sentence in 2006. The petitioner remains in detention pending deportation. He currently cannot be deported as he has no identity documents and he fails to co-operate with the authorities to obtain them. All his statutory rights of appeal have been exhausted or waived. It is maintained by the Secretary of State that he presents a high risk of re-offending and/or absconding, and therefore that his release is not possible. He will be deported as soon as he co-operates and obtains emergency travel documentation. The Petitioner states that his continued detention is procedurally flawed as the Secretary of State has been operating illegal immigration policies, and that in any event, the time has long passed since the Petitioner was reasonably and properly detained and so is entitled to be released.

The court accepted that there is a presumption of liberty at common law in Scotland. It was therefore for the Secretary of State to justify continuing detention. The Court further held that under the principles set out in R v Governor of Durham Prison ex p Hardial Singh 1984 1 WLR 704 there is no single period which when reached, automatically leads to the conclusion that the period of detention has become unreasonable, each case must be considered on its own merits. Legaility of detention does not hang on compliance with policy and the Detention Centre Rules, thus formal non-compliance does not matter where the merits show that the period of detention is reasonable. In considering the merits the Court held that the petitioner’s self-induced detention through his non co-operation and inconsistent attitude are weighty considerations, as are the lack of ties between the petitioner and the UK, that he had exhausted all his statutory rights of appeal. Also considered was the factual history of his entry to the UK and criminal conduct whilst in the UK and the implication from that of a significant risk of absconding and re-offending. It therefore appeared reasonable to the Court to continue the Petitioner’s detention while these risks still obtain and while it still appears to be the case that co-operation on his part will lead to his speedy deportation.

The full report can be found here.

KB (Trinidad & Tobago) v Secretary of State for the Home Department

Sarah Smith — Wed, 03 Feb 2010 22:16:45 +0000

Held that deportation cases did not call for a materially different approach from that required in ordinary removal cases, but the two types of case involved a different legitimate aim and thus the presence of additional factors and the weight to be given to them would affect the balancing exercise.

This case is available to read here.