New government seeks to bully judges

Those expecting a new spirit of fairness and social liberalism to engulf the UK Border Agency (UKBA) following the insertion of the LibDems into government are perhaps beginning to realise the folly of their hopes in the light of recent news.

The uncertain ‘good news’ that the detention of children is to be ended, at some point, although not in the immediate future, has been followed by unequivocal evidence that it is business as usual at UKBA. In the past week, we have learned that it is:

planning to deport unaccompanied children to Afghanistan (read an IRR News story: ‘Deportation targets trump children’s rights’);
telling judges not to interfere with its proposed charter flights to Iraq;
demanding that those coming to join spouses or partners in the UK, or to marry here, learn English before they come.

Charter flights

The removal of refused asylum seekers and foreign national prisoners by charter flight is very contentious. Charter flights are used where it is deemed impracticable to use ordinary scheduled flights. Campaigners link the rise in their use to the increasingly vocal protests by those being removed and by members of the travelling public, amid allegations of excessive force during the process, which made airline companies reluctant to carry deportees on their commercial flights.

The use of charter flights to remove refused asylum seekers and foreign national prisoners in large numbers rose massively in the past two years or so: according to a parliamentary answer in January 2010, there were at least sixty-four flights in 2009, to Afghanistan, Albania, DRC, Iraq, Jamaica, Kosovo and Nigeria.[1] Many were joint charter flights with other EU member states, coordinated by the EU border agency, Frontex.

For the government, charter flights are ideal because there are no interfering members of the public to witness the removal process or to protest at the treatment of those being deported. The only problem with charter flights is the cost, which nearly doubled from £4.8 million in 2007 to £8.3 million in 2008 (figures for 2009 are not available). The imperative for the UKBA, therefore, is to fill the flights. And legal challenges to removal launched by prospective deportees mean empty seats.

These considerations underlie government lawyers’ pre-emptive intervention against late legal challenges to the deportation flight to Baghdad which took place in the early hours of 9 June 2010. In a letter to duty judges, Andrea McMahon of the Treasury Solicitors (who represent all government departments in litigation) wrote: ‘Because of the complexities, practicalities and costs involved in arranging charter flights, it is essential that these removals are not disrupted or delayed by large numbers of last-minute claims for permission to seek judicial review.’ The letter tells judges that UKBA does not believe that there can be any good reasons for late applications for judicial review or applications for injunctions, and asks judges to ‘take the above information into account when considering any applications for injunctions to prevent the removal of those due to be returned’ on the flight.

The normal practice is to defer removal on receipt of evidence that a judicial review has been lodged to challenge the removal (of which five days’ advance notice is generally given). But in parallel with the increased use of charter flights, in the last two or three years UKBA has sought to avoid this normal practice in certain specified cases, either by curtailing the period of notice, which makes it more difficult for those being removed to find legal representation and to lodge a judicial review claim in time, or by refusing to defer removal unless served with an injunction.

Recently, UKBA decided to remove suicidal and other vulnerable refused asylum seekers including unaccompanied children with no notice, on the ground that giving advance notice might cause undue distress. But at a preliminary hearing in May 2010 in a challenge brought by Medical Justice, this practice was suspended pending the full hearing.

A protocol drawn up in 2009 to deal with abusive last-minute claims for judicial review states that in cases where a claimant has made a previous claim for judicial review, or had an appeal refused, on virtually identical grounds, removal will not be automatically deferred on receipt of judicial review papers. And then in January 2010, UKBA issued new instructions to its caseworkers advising them that those booked on charter flights with ‘special arrangements’ (eg joint charter flights) might need to obtain injunctions (rather than simply lodging judicial review applications) to prevent their removal. In such cases, it said, judges would be informed in advance of the ‘detailed arrangements necessary for each charter operation’.

Executive interference

Clearly, the government is entitled to change its policy on deferring removals in accordance with operational needs, provided it complies with the rule of law. It is entitled, too, to inform judges of such policy changes. But the letter from UKBA’s lawyers to the judges goes much further. The clear message of the letter to judges from Treasury Solicitors is: make it easier for us to proceed with this charter flight; don’t give these claimants injunctions – an extraordinary interference by the executive in the judicial process.

It is unlikely that judges would be influenced by such blatant attempts to stop them delivering justice. High Court judges guard their independence fiercely and do not take kindly to attempts to subvert their role as guardians of government legality by appealing to administrative convenience. The last time UKBA sought to return Iraqis to Baghdad, a High Court judge blocked the removal of at least six people, on the ground that UKBA had refused to disclose the exact destination of the flight. Another High Court judge, ordering an injunction against the removal of the applicant, expressed frustration that he did not have the power to stop the whole flight, but could only respond to individual applications.

‘Astonishing misrepresentation’

When the previous UK deportation flight arrived in Baghdad, in October 2009, three-quarters of the forty-four deportees on board were refused entry to Iraq and returned to the UK – a fact not mentioned in the Treasury Solicitors’ letter, which described the operation as successful. In a furious response, copied to the High Court, Sophie Barratt-Brown, chair of the Immigration Law Practitioners’ Association (ILPA), said this description was ‘an astonishing misrepresentation’ of what actually happened:

In the wake of the attempted deportation in October 2009, in a leading case challenging the deportations (Ahmed), the judge said the failure of the mission ‘raises the question whether any future flight is likely to be successful …’
The judge in that case accepted that the head of immigration in Baghdad told the returnees that he thought Kurds would be at physical risk in Baghdad and he would not be responsible for their safety;
Assistance which returnees had been told would be made available to them was not.

Pointing to the failure of the UKBA lawyers even to refer to the existence of the leading judgment, the ILPA chair asked for an urgent explanation ‘why you have asked duty judges to rely on an unqualified assertion that the October 2009 flight was successful … and whether you consider your conduct professionally appropriate in relation to injunction applications where it is possible that returnees may be unrepresented’. In response, Treasury Solicitors agreed to put the case of Ahmed before the judges, but insisted that the deportation of ten out of forty-four passengers on the previous flight made it ‘successful’!

UNHCR criticism

Yesterday, the flight went ahead as planned, carrying ten Iraqis from the UK, and was to pick up another forty or so from Sweden, despite criticism from the UN High Commissioner for Refugees (UNHCR), who said that UNHCR opposed forced returns to central and southern Iraq in view of the continuing violence and serious human rights abuses there. As the Stop Deportations campaign point out, The UK is one of a few European countries, beside Sweden and Denmark, that have forcibly deported people to central Iraq in recent months against the advice of the UNHCR and other international organisations. A further deportation flight to Baghdad is planned for 16 June 2010, carrying forty Iraqis from the UK.

Dashty Jamal, of the International Federation of Iraqi Refugees, said of the deportation flights, ‘The new government is playing politics with the lives of Iraqi refugees, many of whom had to leave because of the war David Cameron and his party supported. That war was not fought to make Iraq more secure, as David Cameron said, but for the economic and political interests of the US and the UK. Iraq continues to suffer from the effects of this war and people should not be sent back there. Iraqi refugees have the right to stay in this country with their families and lives here.’

Language tests

The introduction of English language tests for migrants coming to join spouses and partners in the UK is an extension of the previous government’s policy to seek to homogenise immigrants to ensure their assimilability into a ‘British way of life’ and ‘British values’. Language tests were first applied to those who sought to become citizens, then extended to those who sought long-term settlement here following a period of lawful residence.

The arrogance of such a demand can be seen by imagining how British spouses seeking to join partners in Thailand or Malaysia would respond to a demand that they learn Thai or Malay in order to qualify. It is almost certainly in breach of the European Human Rights Convention, Article 8 of which protects the right to private and family life from unwarranted interference. Just how it is justifiable to impose a pre-condition of a language test on the right to family reunion is a question which will no doubt be occupying the courts in the near future.

Back to the numbers game

On 27 May 2010, releasing the quarterly immigration statistics, immigration minister Damien Green promised further actions to slash the numbers of immigrants, which he said were ‘far too high’. It is clear that the new government is playing to public ‘fears’ on immigration so assiduously talked up during the election campaign – and in the process, the rights of the most vulnerable are being put at risk.