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Published in:
Entrapping Asylum Seekers: Introduction Read chapter Read first chapter

2017 | OriginalPaper | Chapter

7. Asylum Seekers and Strategic Litigation

Author : Frances Webber

Published in: Entrapping Asylum Seekers

Publisher: Palgrave Macmillan UK

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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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previous chapter ‘This Time I Am Going to Cross!’: Fighting Entrapment Processes Through the Provision of Human Smuggling Services on the US–Mexico Border
next chapter ‘Hostile’ UK Immigration Policy and Asylum Seekers’ Susceptibility to Forced Labour
Footnotes
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
Hansard HC 24.4.2002 col. 353.
 
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
The Public Law Project has produced a guide to strategic litigation for community groups (PLP 2015).
 
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
Under regs 70–72, Income Support (General) Regulations 1987, SI No. 1967. See Cracknell (1996).
 
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
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
An EU regulation stipulating that asylum claims should generally be dealt with by the first EU country entered by the asylum seeker.
 
10
Salih and others v Secretary of State for the Home Department [2003].
 
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
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
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
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.
 
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
With reports such as Fast track to despair: the unnecessary detention of asylum seekers (2011).
 
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
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
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
The O’Loan inquiry, which reported in March 2010 and made 22 recommendations for change.
 
22
Alison Harvey, Legal Director of the Immigration Law Practitioners’ Association (ILPA), in her obituary of Helen Bamber OBE.
 
23
Panel on the Independence of the Voluntary Sector.
 
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
A quotation from Lord Scarman in ex p Khawaja at 111–2.
 
Literature
Athwal, H., & Bourne, J. (2015). Dying for justice. London: IRR.
Birnberg Peirce & Partners, Medical Justice and the National Coalition of Anti-Deportation Campaigns. (2008). Outsourcing abuse: The use of state-sponsored force during detention and deportation.
Blunkett, D. Debate on the Nationality, Immigration and Asylum Bill, Hansard HC 24.4.2002 col. 353.
Campaign Against Racism and Fascism/Southall Rights. (1981). Southall: The birth of a black community. London: Institute of Race Relations and Southall Rights.
Cracknell, R. (1996, January 19). Social security changes for asylum seekers and other claimants from abroad (Parliamentary Research Paper 96/9).
Detention Action. (2011). Fast track to despair: The unnecessary detention of asylum seekers. London: Detention Action.
Detention Forum, Vulnerable People Working Group (2015). Rethinking vulnerability in detention: A crisis of harm.
Gillett, G. (2014, August 7). The UK must reform its treatment of asylum seekers. New Statesman.
Greater Manchester Immigration Aid Unit. (1993). Immigration controls are out of control: The new asylum and immigration bill. Manchester: Greater Manchester Immigration Aid Unit.
House of Commons. (2015). The report of the inquiry into the use of immigration detention in the United Kingdom. A Joint Inquiry by the All Party Parliamentary Group on Refugees & the All Party Parliamentary Group on Migration, March 2015. https://​detentioninquiry​.​com/​report/​
Newham Monitoring Project/CARF. (1991). Newham: The forging of a black community. London: NMP/CARF.
Sivanandan, A. (1990). Communities of resistance. Verso, New York.
Sivanandan, A. (2008). Catching history on the wing: Race, culture and globalisation. London: Pluto.
Social Security Advisory Committee. Report on social security (Persons from Abroad) (Miscellaneous Amendments) Regulations 1996, Cm. 3062.
Webber, F. (2012). Borderline justice: The fight for refugee and migrant rights. London: Pluto.
Weller, P. (1987). Sanctuary: The beginning of a movement. London: Runnymede Trust.
Hossain and others v SSHD [2016] EWHC 1331 (Admin).
R (Detention Action) v SSHD [2014] EWCA Civ 1634.
R (Detention Action) v SSHD [2014] EWHC 2245 (Admin).
R (EM Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, Supreme Court.
R (JM, RE, KW, MY) v SSHD [2015] EWHC 2331 (Admin).
R (Medical Justice) v SSHD [2010] EWHC 1925 (Admin).
R (Public Law Project) v Lord Chancellor [2014] EWHC 2365 (Admin).
R (Public Law Project) v Lord Chancellor [2016] UKSC 39.
R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin).
R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1481.
R (TH) (Bangladesh) & Ors, v SSHD EWCA Civ 815].
R v Lord Chancellor’s Department ex parte Child Poverty Action Group [1998] EWHC 151 (Admin)
R v SSHD ex p Ejon [1998] INLR 195, 9 October 1997.
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.
Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) and others [2015] EWHC 1689 (Admin), upheld [2015] EWCA Civ 840, 29 July 2015.
R v Minister for Social Security ex parte B, ex parte JCWI [1997] 1 WLR 275.
R (Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66.
Metadata
Title
Asylum Seekers and Strategic Litigation
Author
Frances Webber
Copyright Year
2017
Book
Entrapping Asylum Seekers

Print ISBN: 978-1-137-58738-1

Electronic ISBN: 978-1-137-58739-8

Copyright Year: 2017

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