The four articles below constitute a valuable resource concerning different facets of the impact of the Hostile Environment on the current post 2012 Immigration Tribunal.
Interactions and Identities in UK Asylum Appeals: Lawyers and Law in a Quasi-Legal Setting
First Online: 05 December 2018
This chapter explores the complex nature of refugee determination through the experiences and work of lawyers in asylum appeals at the UK First-tier Tribunal (Immigration and Asylum Chamber). It highlights the dilemma whereby asylum appeals are generally anticipated to be determined within a system of legal norms, whereas what is frequently encountered is the exclusionary politics of immigration control.
Key to analysis here is an exploration of the significance of relationships and communication between tribunal actors situated in multiple, intersecting social fields. By looking at professional backgrounds, personal relationships and organisational dynamics, we gain a sense of how legal values of fairness and justice in refugee determination procedures are so often subsumed by political, administrative and economic concerns to control migration.
Senior judge calls UK immigration rules ‘a disgrace’
Court of Appeal judge Stephen Irwin called the UK’s immigration rules “something of a disgrace,” in his speech on the complexity and obscurity in the law.
Speaking at the Professional Negligence Bar Association on 17 April, Judge Irwin used immigration law to illustrate how the complex drafting of laws can be made even more difficult by political objectives – especially populist political objectives.
“Regulations determining the rights of individuals in the immigration context may sometimes be necessarily complex, but we must ask whether they could not be drafted in a manner which makes them less obscure,” he said. Irwin’s full speech can be found here.
Immigration, the Stansted 15 and the Hostile Environment
by Luke Butterly
In a small court room, on a small street, in a small town in southern England, a trial of great significance came to an end.
In proceedings that spanned almost two years, 15 activists defended their actions on the night of 28th March 2017, when they broke into the Stansted airport and used their bodies to prevent the deportation of 60 people on a ‘charter’ flight.
Charter deportation flights are one of the most disturbing aspects of the UK’s asylum and immigration process. Shielded from public oversight and protected from freedom of information requests, these ‘ghost flights’ forcibly remove people en-masse from the UK. As is common with charter flights, many of whom were on this particular flight were still fighting their cases.
Everybody seeking the right to remain in the UK faces significant obstacles to establishing their legal rights. The ‘Go Home Office’ puts considerable resources into making the UK a ‘hostile environment’, removing access to housing, work, and healthcare. People are held without time limit in immigration detentions centres – even when it violates Home Office guidelines to do so. Growing legal and financial barriers means access to justice is increasingly an illusion. Deportation by charter or commercial flight is the last stage in a system designed to break lives.
What the Stansted 15 did that night – a peaceful direct action – was to prevent a greater crime by saving lives. As a result of their action, 11 people are still in the UK with their families, communities, living in the places where they have made their lives.
The Stansted 15 were found guilty – after the judge stated that they could not rely on the defence that they acted in order to prevent human rights abuses. But for many onlookers around the country, it was the Home Office and their policies that were really in the dock.
On day 25 of the trial, the viewing gallery was overflowing. Once all of the seats were filled, the judge made a point of allowing people to sit on the floor.
Sara Mohtaseb was one such supporter. She took a day off from work to attend the trial, saying:
‘I don’t personally know any of the defendants, but I think it’s really important to show them support both for the peaceful action they took, and for going through this protracted and undoubtedly draining legal process. In the future, I hope that people will see the UK’s use of charter deportation flights for what it is: a dehumanising and violent practice. The Stansted 15 have already contributed to that future.’
Gracie Mae Bradley, the Policy & Campaigns Manager at human rights charity Liberty, said she:
‘attended the trial along with many others to let the Stansted 15 know that they are not alone as they navigate an intimidating legal process. And I also did so to remind the Government that its cynical attempt to stifle peaceful protest with unprecedented terrorism charges is not going unnoticed.’
Alongside more publicly visible protests, Gracie said the role in supporting people in court was also important:
‘Direct action and demonstrations are often what springs to mind when we talk about protest. But protest also manifests itself in small, kind acts of solidarity like going to court hearings or accompanying people to immigration reporting appointments.’
There are clear parallels between the support given during the Stansted 15 trial, and the solidarity shown to those going through asylum and other immigration hearings – hearings in which a negative outcome can mean being forced on to the kind of charter flight that the Stansted 15 stopped.
Aderonke Apata, a Nigerian LGBT rights activist who fought for 13 years before being recognised as a refugee, received a lot of support during her ordeal. On the day of a crucial judicial review, people gathered for hours outside to cheer her as she walked into the court building. Many travelled on crowd-funded transport from other parts of the country to come and support, including the Manchester Migrant Solidarity contingent who survived a night bus with no heating. Supporters held a vigil outside the court, and caught the early morning rush-hour and leafleted passers-by to spread the word about the injustice Aderonke was fighting. Inside, Aderonke’s closest supporters packed out the court-room and the judge allowed extra people in, using all the space available.
Sometimes, other tactics are needed. When Eve* decided to launch a public campaign for her right to remain in the UK, it was not only because she would be in very serious danger if returned to Uganda and so wanted to do all she could to get the right to remain. It was also because she wanted to raise awareness of the plight of lesbians in Uganda, and to make the British public know about the abuses and injustices of the asylum and immigration system.
Eve’s lawyer was worried a large presence at her judicial review hearing might have negative consequences on her case, but Eve was feeling very anxious and depressed at the prospect of a daunting hearing. Her campaign group organised a Facebook Vigil at the time of the judicial review hearing – instead of attending in person, people said they would be ‘attending’, posting messages of good will and pledging that they would be thinking of Eve at the time of the hearing. They also posted messages of good-will. This boosted Eve’s morale, knowing so many people out there were supporting her, and that she felt strong enough to keep going with her legal case.
As Eve and many others can testify to, asylum hearings in particular can be challenging. Home Office officials – often appearing over videolink – attempt to tear your life apart.
Edgar, from expert-by-experience group Freed Voices, said that the way the courts are designed leave you isolated and alone, and therefore solidarity is vital:
‘Self-reliance is a strength that can be tapped on, when one is enjoying the joys of freedom. The immediate aftermath of exiting an immigration detention centre is the realisation that one’s dependency ratio has gone up and it is skyrocketing at an exponential rate. As a result, self-confidence falls below expected scales; so low that self-doubt rules over everyone single decision one makes. Goodbye self-reliance.
This is worse when one enters the four walls of a court room. Every bit of self-confidence; self-reliance is gone.’
Arery, also from Freed Voices, went through similar experiences:
‘I don’t think I will ever find courts any less than stressing. I don’t think I’ll ever understand them or feel comfortable there, but sometimes you have no better choice than surviving the fear of facing the court and go through the whole process. It doesn’t matter how right you think you are, if you do not have the support and the solidarity of your friends during these circumstances, the probability that you are going to fail is almost 100%. There’s no place in the world where you feel more isolated than in a Court room. You can never be prepared enough for a moment like this.’
Arery said that while his hearing didn’t go well, he felt it would have been much worse without the support he received from his friends in Freed Voices – both before and during the hearing:
‘I wish they were solicitors – it makes such a different to have someone that you can trust and gives you the necessary time and the rights tools to overcome a situation so challenging like being in court.’
Edgar was able to draw on the lived experience of those supporting him, and that receiving support from those that don’t understand your situation can be difficult:
‘They understand what one is going through; detention, court proceedings and numerous, interrogating questioning. They are the required comfort and support. When I felt emotional, I looked at my fellow Freed Voices members and knew I had to be strong. When I got angry, uncomfortable or misunderstood a question, I looked at them and reminded myself I was fighting for us all. So, I will recompose myself and deal with the situation better. I will forever be grateful that my fellow members where there.
Having family, friends and members of one’s community around helps, because they offer the moral and financial support desperately need. But they don’t always understand and this lack of understanding is always felt; especially when expressions like ‘I am so sorry you have to go through that…’ are used.’
For human rights activist Sipho Sibanda, having people in the courtroom with you allows you to draw on their strength, but also leaves you and your life completely exposed:
‘For me what helped was emotional support more than anything. The Home Office didn’t even recognise my supporters.
It gave me strength, but also left me feeling exposed because I had to re-live the gory details of leaving my home that I had kept hidden in some paperwork at the Home Office. Not that my supporters would use it against me…But it was just the thought, that they now knew everything… I hated seeing the pity in everyone’s eyes, but found strength in them too.’
Lisa Matthews and Michael Collins, co-ordinators of migration justice organisation Right to Remain, have supported Eve, Aderonke and many others during their cases. They often say that the immigration system is like a game of snakes and ladders, but only with snakes – and so you have to work together to put the ladders back in.
‘We spend a lot of time talking about this, but that’s because it’s the bottom-line of our work: the importance of working together, in mutual support, to get through the asylum and immigration system, to be less harmed by the experience, and the need to come together to change the system for the better.’
The Home Office puts significant time and effort trying to make people feel isolated and alone as they go through their applications, appeals and hearings. They want people to internalise the rejection they face – so when they ‘fail’ to get their right to remain it is somehow their fault, rather than the system that has failed them. When supporters help combat this injustice by bearing witness in (and out of) the courtroom, that solidarity can be a powerful tool.
A rapid decline in the number of immigration tribunal judges could herald a crisis, despite the government’s insistence that there is sufficient capacity to deal with a growing backlog of work.
Government figures show that in 2012 there were 347 fee-paid and 132 salaried judges in the first-tier tribunal. In 2016 there were only 242 fee-paid and 77 salaried. In the upper tribunal, a headcount of 40 fee-paid and 42 salaried judges in 2012 declined to 35 fee-paid and 42 salaried last year.
Official figures show there were 62,903 outstanding cases in the first-tier tribunal at the end of the third quarter last year, up 20% on the same period in 2015. The age of a case at disposal was 48 weeks between July and September 2016, 15 weeks longer than the same period in 2015.
Justice minister Sir Oliver Heald said the ministry was doing everything it can ‘to avoid unnecessary delay’ in the immigration and asylum tribunal.
Responding to a parliamentary question by Keith Vaz, MP for Leicester East, Heald said the government has provided an additional 4,950 tribunal sitting days for this financial year to ensure current caseloads do not increase. ‘We are keeping performance under close review and are confident there is sufficient capacity to deal with the number of appeals we expect to receive,’ he added.
However, solicitor Christopher Cole, a member of the Law Society’s immigration law committee, highlighted problems experienced by practitioners over the past six to 12 months due to a lack of judges.
Cole, partner and head of immigration at Rotherham firm Parker Rhodes Hickmotts, said: ‘The most common and frustrating issue has been the late adjourning of hearings due to a lack of judiciary. Delays in the first-tier tribunal (immigration and asylum chamber) have been pretty extreme over the last 18 months or so.’
The resident judge in the first-tier tribunal receives a salary of £133,506. Fee-paid immigration judges in the first-tier tribunal are paid £486.82 per day or £505 including a London weighting fee. Other members are paid £276.74. In the upper tribunal, fee-paid judges receive £606.85.
According to a judicial attitudes survey published this month, a quarter of first-tier tribunal judges thought their case workload over the past 12 months was ‘too high’.
See too https://www.lawgazette.co.uk/law/moj-to-introduce-allowance-to-stop-judges-quitting/5059934.article … government figures show a rapid decline in the number of immigration tribunal judges since 2012.