Of dodgy bus passes, amnesties and a looming judgment

The Family ILR Amnesty initially came into effect on the 24th October 2003 and ended in December 2004. The deadline has now been extended to April 2006. The amnesty is a one-off exercise to grant indefinite leave to remain in the UK to certain asylum seekers and their dependants who claimed asylum before October 2000 and who have a dependant child who was aged under 18 in October 2000 or October 2003. Time is running out and if you think you qualify, act now. One of the conditions for qualifying for the amnesty though is that the Applicant must not have a criminal conviction, ASBOs included. There is a documented case of an applicant who was refused under the amnesty solely for a conviction of the petty offence of using his sister’s bus pass. Small offences can cost dear.

Choosing an Immigration Adviser/Solicitor

It is critical to choose a competent and reputable advisor at the very beginning of a claim or case. Many potentially strong cases have been botched by fly-by-night advisors operating from dodgy alleys. To undo the damage at a later stage can be as hard, if not as impossible, as rectifying a bad haircut. The good news is that since April 2005, it is now unlawful for anyone to give immigration advice without being registered by the Office of Immigration Services Commission (OISC). Every registered advisor, or organisation, appears on the OISC online register.

Further, advisors who do publicly funded immigration work under the ‘legal help’ scheme are now required by the Law Society and the Legal Services Commission to be accredited at the level of their competence and practise. Immigration solicitors are also regulated by the Law Society, which offers greater assurance of quality of work. There is also an organisation called the Immigration Legal Practitioners Association (ILPA) for immigration specialists. A full register of its members appears on the ILPA website. It would be suspicious if an immigration advisor did not appear anywhere on either of these three websites.

My advice is to obtain proof of registration, at least with the OISC, especially before parting with money. In the event of misconduct or mishandling of a claim, you will have avenues to explore, not least the in-built complaints systems inherent in the membership schemes. All these arrangement for registration, accreditation and self-regulation are geared at protecting the public by flushing out rogues masquerading as lawyers.

On Tagging:

It turns out that quite a few Zimbabweans have been asked to submit to involuntary tagging. This involves wearing an electronic bracelet on the wrist or ankle. The starting point is that the current law, (Section 36 of the Immigration and Asylum (Treatment of Claimants etc) Act 2004) does allow for the electronic monitoring of those liable to detention under the Immigration Acts. This includes asylum seekers, illegal entrants, those found working in breach of their conditions of stay, overstayers, people subject to further examination at a port of entry, and those refused leave to enter.

Electronic monitoring can be telephone reporting using voice recognition techniques, tagging and tracking. Tagging is far more widely used by the Home Office. Having said this, however, it is important to remember that during the passage of the 2004 Act, the then Minister for Immigration and Citizenship, Beverley Hughes, stated that an electronic monitoring requirement would be imposed only with the consent of the individual. The government has now done a volte-face and have announced that consent is no longer a requirement.

It appears however that tagging can be challenged because the Secretary of State has not implemented the statutory instruments necessary to make the provisions of the 2004 Act and the 2005 Procedure Rules a reality. Basically until this is in place, a requirement to comply with electronic tagging may appear to be outside the current rules. Readers will remember that attempts last year to tag the Belmarsh detainees floundered for this reason, and they were all sent back from Court.

In practise, anyone asked to comply with tagging must insist of the reasons for tagging in writing, sign under protest (because a straight refusal may be construed as non-compliance with a requirement of the Secretary of State which can lead to dire consequences), then contact their legal advisors as a matter of urgency to challenge the tagging by way of judicial review. There is a strong argument to be made that tagging contravenes key human rights instruments that the UK is party to. In any event, tagging humiliates, stigmatises and criminalises asylum seeking.

On Changes to Refugee Status:

Since 30 August 2005, people granted refugee status in the UK no longer get Indefinite Leave to Remain at the first instance. They now get only 5 years leave to remain which will be kept under active review. A review of the status can be triggered by the individual's conduct or a change of conditions of the country of origin. The vital point to note is that refugee status can be a brilliant opportunity. It can open doors to cheap higher education (refugees pay home student rates at UK universities in terms of the Education (Fees and Awards) Regulations of 1997). The new regime is such that one should never be complacent with refugee status, at least not until the grant of ILR. It can be taken away. It is therefore important to consider obtaining good qualifications which one can always fall back if the worst were to happen.

Marriage in the UK:

Since 1 February 2005, all persons subject to immigration control will now need the permission of the Secretary of State for the Home Department in order to get married in the UK. The permission is obtained in the form of a Certificate of Approval, a move which has been described as making, ‘the Home Secretary the Marriage Registrar of last resort.’ Under the rules, non-EEA nationals with less than six months' leave to remain can be barred from getting legally married in a UK ceremony unless they obtain the special permission of the Home Secretary at a cost of £135 per person. Statistics show that the Home Office could be generating as much as £1.6 million a year by charging couples for the permission to marry, as between the introduction of the new rules in February 2005 and the end of August, the Home Office had already received 7,201 applications to marry, generating just under a £1 million.

The new marriage rules apply whether a non-EEA national wishes to marry another non-EEA national, or a UK, or EEA national who is fully entitled to residence. These draconian rules are now being challenged in the courts in 3 cases in which the Joint Council for the Welfare of Immigrants (JCWI) has intervened. The JCWI’s position is that these rules discriminate against many in genuine relationships.

It is interesting to note that one of the 3 cases involves a failed asylum seeker wishing to marry an individual granted refugee status in the UK. This will be the one to watch.

I spoke to Rhian Beynon, the JCWI Communications Officer on the 27th February 2006 and she told me that, "The High Court has re-scheduled the hearing on a separate point of law but even if we win, the Home Office is likely to appeal and if we lose, we will appeal and so this will take a long time to resolve.”

Watch this space for further developments on this issue.

The AA Decision and Current Developments:

I end this despatch with news that the Home Office appeals in AA and LK have been expedited by the Court of Appeals and that the substantive hearing is listed for three days from 6th March 2006. AA and LK are of course the leading Zimbabwean cases which establish that there exists a real risk of harm in Zimbabwe to returned asylum seekers. The Home Office have also indicated that they will seek to have all Tribunal determinations resolved solely on the basis of AA and LK reconsidered. In particular, the current position that the benefits of the Refugee Convention are available to those who qualified for them regardless of any question of good faith or bad faith (called the Danian point after the case that established it) is likely to be the focus of the appeal. Now, let us remind ourselves of the 3 reasons why the Home Office lost in AA:

Firstly, they sent to Zimbabwe a team from the Home Office Policy Unit, in-spite of the fact that they have at their disposal the Country of Origin and Information Unit with the competence for field investigations. The fact that this more independent body was not used buttressed the possibility that the investigators had an existing policy in mind rather than the discovery of new facts.

Secondly, the Home Office did not do enough to protect failed asylum seekers. Their documents were handed over to the air crew in a move that expose them to the regime on arrival at Harare airport. Further, the investigation by the Home Office was considered to be insufficient. In spite of the resources and the level of the investigation, it revealed nothing of what actually happens when someone is handed over at the Harare airport.

Thirdly, the Home Office did not rely on individual cases to prove allegations of real risk in Harare. They argued from silence - asserting that if returned asylum seekers were at risk of persecution, the NGOs on the ground would have heard about it. This was considered to be a mistaken view. Because of their resources and information at their disposal, their failure to trace and monitor any individual complainants was considered ‘exceedingly surprising’.

You will note that all these 3 ‘errors’ are well within the Home Office’s powers to rectify and the Home Office will be attempting to show the court that they have since done so. AA is therefore by no means a safe decision. However, even if the worst were to happen, it is ultimately the individual’s particular circumstances which count. What is critical in any Zimbabwean asylum claim is that emphasis should be made on the particular substantive facts of the applicant and not simply to seek to establish refugee status on the basis of AA.

For now, as judgement day looms, fingers crossed.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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