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Entrapping Asylum Seekers pp 157–185Cite as

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Asylum Seekers and Strategic Litigation

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Part of the book series: Transnational Crime, Crime Control and Security ((TCCCS))

Abstract

Asylum seekers and migrants and their support organizations in the UK have become increasingly involved in strategic litigation as a complement to direct action and political campaigning, to defend and secure basic rights. The test cases are important in themselves, challenging policies which violate fundamental rights in various ways, including through enforced destitution, detention of torture and trafficking survivors, long-term detention of mentally ill migrants, and forced removal to danger. They also ensure that the voices of asylum seekers and migrants are heard, and can instil confidence and a sense of agency among asylum seekers and migrants. But strategic litigation cannot replace political campaigning; without a popular movement, the gains of test cases are vulnerable to reversal through further litigation or legislation, and the British Government has also acted to restrict the possibilities of intervention for asylum seekers, migrants and their support organizations.

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Notes

  1. 1.

    R (on the application of Detention Action) v Secretary of State for the Home Department [2014], Detention Action v First Tier Tribunal (Immigration and Asylum Chamber) and others [2015].

  2. 2.

    Hansard HC 24.4.2002 col. 353.

  3. 3.

    Many times, I and my colleagues have had to repair and re-present good claims lost on appeal by shockingly poor practice by solicitors, including failure to take witness statements or to obtain easily accessible evidence in support of the claim. Generally, it is migrant support groups who take up the cases and look for fresh representatives.

  4. 4.

    The Public Law Project has produced a guide to strategic litigation for community groups (PLP 2015).

  5. 5.

    The Lord Chief Justice’s Direction of 21 August 2013 sets out which judicial review cases must now be issued in the Upper Tribunal. See Law Society Practice Notes: immigration judicial review, section 5.

  6. 6.

    Under regs 70–72, Income Support (General) Regulations 1987, SI No. 1967. See Cracknell (1996).

  7. 7.

    The Asylum and Immigration Act 1996. The doctrine of parliamentary sovereignty allows the government to enact legislation that breaches fundamental rights. Although the courts cannot quash primary legislation, since October 2000 (when the Human Rights Act 1998 came into force) the higher courts may issue declarations of incompatibility (telling the government that the law violates fundamental rights). For the full story of what happened next, see my Borderline justice: the fight for refugee and migrant rights (2012).

  8. 8.

    The Human Rights Act 1998 brought the provisions of the 1950 European Convention on Human Rights and Fundamental Freedoms, ratified by the UK in 1951, within UK law. Section 55 of the Nationality, Immigration and Asylum Act 2002 removed support from late claimants but restored it ‘to the extent necessary for the purpose of avoiding a breach of the person’s Convention rights’.

  9. 9.

    An EU regulation stipulating that asylum claims should generally be dealt with by the first EU country entered by the asylum seeker.

  10. 10.

    Salih and others v Secretary of State for the Home Department [2003].

  11. 11.

    Organizations including the All African Women’s Group and the Zimbabwe Association, along with many support groups, gave evidence to the House of Lords House of Commons Parliamentary Joint Committee on Human Rights’ inquiry on the treatment of asylum seekers: see its 10th report (2007).

  12. 12.

    There is no statutory time limit on immigration detention, and although most detainees are held for under two months, some have been held for over a year, and a small number for three, four and even five years, awaiting deportation. See Migration Observatory (2015).

  13. 13.

    First came the long campaign against the UK’s immigration reservation to the UN Convention on the Rights of the Child, which subsumed children’s welfare to immigration control. The reservation was withdrawn in 2009 and the ‘best interests of the child’ became central to officials’ decisions through the Borders, Citizenship and Immigration Act 2009 s 55.

  14. 14.

    See Borderline justice (2012), Chapter 9, for a fuller account of the campaign to end child detention. Children are still detained—on arrival, at airports and ports, and for removal, in families; see ‘The business of child detention’, 2014. Cedars, the UK’s only ‘child-friendly’ detention building, was closed in August 2016.

  15. 15.

    The Shaw review, announced on 9 February 2015, https://www.gov.uk/government/news/home-secretary-announces-independent-review-of-welfare-in-detention.

  16. 16.

    The review can be accessed through the EIN website, ‘Home Office releases Shaw review into the welfare of vulnerable persons in immigration detention’ 2016.

  17. 17.

    With reports such as Fast track to despair: the unnecessary detention of asylum seekers (2011).

  18. 18.

    Freedom from Torture and Human Rights Watch all published reports in 2011 and 2012 documenting the torture of returnees to Sri Lanka. FfT produced a follow-up report in September 2014.

  19. 19.

    This last exception was in force, although unpublished and unknown, since 2007, when disturbances at Campsfield IRC had followed receipt of removal notices. In 2009, when the unpublished policy came to light, the Home Office was ordered to return a deportee removed under it: R (N) v SSHD [2009].

  20. 20.

    A report on nearly 300 alleged assaults on detainees by guards, co-authored by solicitors Birnberg Peirce & Partners, Medical Justice and the NCADC (now Right to Remain), July 2008.

  21. 21.

    The O’Loan inquiry, which reported in March 2010 and made 22 recommendations for change.

  22. 22.

    Alison Harvey, Legal Director of the Immigration Law Practitioners’ Association (ILPA), in her obituary of Helen Bamber OBE.

  23. 23.

    Panel on the Independence of the Voluntary Sector.

  24. 24.

    See ‘The fading red line: Barnardo’s role in the detention and removal of children’. The government announced the closure of Cedars in July 2016 and the return of families to ordinary detention facilities.

  25. 25.

    A quotation from Lord Scarman in ex p Khawaja at 111–2.

References

Cases

  • D and K [2006] EWHC 980.

    Google Scholar 

  • Hossain and others v SSHD [2016] EWHC 1331 (Admin).

    Google Scholar 

  • R (Das) v SSHD [2014] EWCA Civ 45.

    Google Scholar 

  • R (Detention Action) v SSHD [2014] EWCA Civ 1634.

    Google Scholar 

  • R (Detention Action) v SSHD [2014] EWHC 2245 (Admin).

    Google Scholar 

  • R (EM Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, Supreme Court.

    Google Scholar 

  • R (JM, RE, KW, MY) v SSHD [2015] EWHC 2331 (Admin).

    Google Scholar 

  • R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin).

    Google Scholar 

  • R (N) v SSHD [2009] EWHC 873 (Admin).

    Google Scholar 

  • R (Public Law Project) v Lord Chancellor [2014] EWHC 2365 (Admin).

    Google Scholar 

  • R (Public Law Project) v Lord Chancellor [2016] UKSC 39.

    Google Scholar 

  • R (Q) v SSHD [2003] EWCA Civ 364.

    Google Scholar 

  • R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin).

    Google Scholar 

  • R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481.

    Google Scholar 

  • R (TH) (Bangladesh) & Ors, v SSHD EWCA Civ 815].

    Google Scholar 

  • R v Lord Chancellor’s Department ex parte Child Poverty Action Group [1998] EWHC 151 (Admin)

    Google Scholar 

  • R v SSHD ex p Ejon [1998] INLR 195, 9 October 1997.

    Google Scholar 

  • Salih and others v Secretary of State for the Home Department [2003] EWHC 2273 (Admin), http://www.bailii.org/ew/cases/EWHC/Admin/2003/2273.html

  • ex p Khawaja [1984] AC 74 at 111-2.

    Google Scholar 

  • R (on the application of Detention Action) v Secretary of State for the Home Department [2014] EWHC 2245 Admin, 9 July 2014, [2014] EWHC 2525 (Admin), [2014] EWCA Civ 1634.

    Google Scholar 

  • Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) and others [2015] EWHC 1689 (Admin), upheld [2015] EWCA Civ 840, 29 July 2015.

    Google Scholar 

  • R v Minister for Social Security ex parte B, ex parte JCWI [1997] 1 WLR 275.

    Google Scholar 

  • R (Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66.

    Google Scholar 

Legislation

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Authors and Affiliations

  1. Institute of Race Relations, London, UK

    Frances Webber

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  1. Frances Webber
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Editors and Affiliations

  1. Anthropology, Chinese University of Hong Kong, Hong Kong, Hong Kong

    Francesco Vecchio

  2. Centre for Law and Justice, Charles Sturt University, Bathurst, Australia

    Alison Gerard

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Webber, F. (2017). Asylum Seekers and Strategic Litigation. In: Vecchio, F., Gerard, A. (eds) Entrapping Asylum Seekers. Transnational Crime, Crime Control and Security. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-58739-8_7

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  • DOI: https://doi.org/10.1057/978-1-137-58739-8_7

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