Wednesday, 30 November 2011

Third Country Returns

Here's an interesting case about the 'Third Country Returns' between an Immigrant and the Secretary of State.

I find it interesting and thought I should share it with you. Please read on.

"Medhanye, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 3012

The claimant was an Eritrean national who claimed asylum in the UK. Inquiries by SSHD revealed that the he had previously claimed asylum in Italy. The Italian authorities had accepted, pursuant to the Dublin II Regulation, that they were responsible for dealing with his asylum application.

The claimant was informed in December 2008 that he would be returned to Italy, and in 2009 SSHD certified his human rights claim in relation to return to Italy as ‘clearly unfounded’. The claimant sought permission to challenge SSHD’s maintenance of those decisions in the light of subsequent material that had been submitted in relation to the claim, whilst also seeking a stay pending determination of NS.

The challenge was on two grounds. Firstly, it was asserted that return would violate EU law - specifically Article 1 of the Charter of Fundamental Rights (CFR). Secondly, it was argued on the basis of MSS principles that return would violate Article 3 ECHR because of the conditions encountered on return to Italy.

1. The ECJ has yet to issue judgment in NS on whether CFR applies to decisions under Dublin II, and if so, the nature of the relationship between Article 1 of CFR (right to dignity) and Article 3 ECHR. Permission is therefore granted on this basis, and judgment is stayed pending the ECJ’s judgment;

2. In relation to Article 3 ECHR arguments, the material adduced by the Claimants in relation to ECHR risks was not sufficiently strong to meet the KRS test - KRS states that in the absence of proof to the contrary, there is a presumption that state parties to Dublin II will abide by ECHR obligations.

This case has obvious implications for returns by the UK to Italy under Dublin II given this stay of judgment pending a ruling by the ECJ in NS.  As the Court puts it, ‘it is probable that no returns to Italy can be made until the ECJ issues its judgment.’

In relation to Article 1 CFR arguments, the Court seemed skeptical that the ambit of Article 1 could be any wider than Article 3 ECHR. It was also concerned that the ECJ may not even specifically address this discrete point if they adopt the Advocate General’s opinion in NSAt Para 45 the Court states:

'I do not see the basis upon which it could realistically be held that the returnee’s right to “dignity” had nonetheless been infringed. Ex hypothesi, the returnee would have been treated in a manner that was humane, that did not degrade him or her, and that accordingly respected and protected his or her “dignity”. To postulate some form of humane and non-degrading treatment that nonetheless violated a right to “dignity” would both create intolerable uncertainty as to precisely where the line should be drawn, and would also tend to trivialise what the framers of the Charter no doubt intended to enumerate as undisputed and generally recognised “fundamental” rights. No doubt quite a lot of day to day conduct on the part of public authorities affronts, or could be perceived as affronting, an individual’s “dignity” in a broad sense. But to classify such conduct, when it could not properly be regarded as inhumane or degrading within the meaning of Article 3 ECHR, as a violation of a “fundamental” human right would seem to do no more than fortify that school of critics who continue to see force in Bentham’s celebrated aphorism regarding such rights'.

The judgment is also important as it highlights the high evidential burden that will apply in ECHR challenges in cases where return is contemplated to an ECHR contracting state.

When addressing evidence about Italy in this case, the Court emphasizes at Para.24, by reference to MSS, the need for ‘numerous reports from reputable organisations which all agree that there are serious deficiencies in Italian asylum practice.’   It notes:

The Courts have consistently held that evidence of aberrations does not demonstrate that a country is unsafe, so long as it has –

 ”a system which will, if it operates as it usually does, provide the required     standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations.” (See R v Home Secretary ex p. Adan (CA) [2009] 3 WLR 1274 at pages 1293-1294).

Following KRS, the existence of such a system is to be presumed. It is for the Claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory.

The Court also highlights in particular, the weight that will be attached to the views of the UNHCR and the European Commissioner for Human Rights in ECHR challenges of this kind.

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Friday, 25 November 2011

Extension of employment restrictions for Bulgarian and Romanian nationals

Another update was announced by the UK Border Agency on Wednesday 23rd Nov. 2011. Reas on:

Controls to restrict how Bulgarian and Romanian nationals access the UK labour market will be extended until the end of 2013, Immigration Minister Damian Green announced today.

This means Romanian and Bulgarian (EU2) nationals seeking to work in the UK will continue to require permission from the UK Border Agency before they can work in the UK.

The minister said:
'Maintaining these controls will make sure migration benefits the UK and does not adversely impact on our labour market. The government is radically reforming the immigration system, and has already announced an annual limit on work visas and tough new rules for students to ensure net migration is reduced from the hundreds of thousands to the tens of thousands.

'The Migration Advisory Committee has made a clear case for extending the existing restrictions on Bulgarians and Romanians. This government has also made clear that we will always introduce transitional controls on all new EU member states as a matter of course.'

The decision supports the government's commitment to reduce employers' dependence on migrant workers, particularly for lower skilled jobs. This will help the unemployed to find their way back into work and help the domestic workforce to acquire the skills the economy needs.

A report from the independent Migration Advisory Committee (MAC) looked at the impact on the domestic labour market if the transitional controls were removed. It found that lifting the current restrictions could cause more EU2 nationals to come to the UK to work, particularly in lower skilled occupations where there is greater risk of displacement of resident workers and a negative impact on wages.

Permission to work will normally be given only where the worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker. There are also quota-based arrangements for lower skilled jobs in the agricultural and food processing sectors which will stay at the same level for 2012 and 2013.

The extension of the restrictions does not affect the position of those who have already been authorised to take employment in the UK.

The Migration Advisory Committee's report into EU2 (Bulgarian and Romanian) nationals was released on 4 November 2011 and can be found under the 'see also' section on the right side of this page.