Recent Law Articles



Nine reasons why Labour should oppose the new Immigration Bill

by Guest     October 21, 2013 at 3:58 pm

by Anita Hurrell

The government’s new Immigration Bill is about two things: making it easier for the Home Office to forcibly remove and deport people, and creating a ‘really hostile environment’ in the belief that people will leave the UK if their existence here is made impossible.

If the Bill goes through, legal rights to appeal wrong decisions for all migrants, including the sought-after Brightest and Best, will be severely restricted. This is happening at the same time as the government is cutting off access to the courts through changes to legal aid and judicial review.

Will there be any opposition? The Lib Dems broadly support the Bill, claiming ‘the worst of the Tory excesses have been stripped out’.

And what about Labour? There are some predictable lines: the Tories are still failing on immigration; government is missing its own target; the Bill won’t tackle biggest problems; ‘illegal immigration’ is up and deportation numbers down; The Bill does nothing about exploitation in the labour market. And Yvette Cooper said ‘checks on driving licences and bank accounts sound sensible and build on changes Labour made before the election’ and ‘landlord checks are sensible in principle’.

But this Bill shouldn’t be allowed to pass unopposed for many reasons – here are a few.

1. Stripping people of appeal rights will lead to more bureaucratic chaos
People will no longer be able to appeal on the basis that the Home Office got its decision wrong. Independent scrutiny of many of the decisions that determine people’s lives will go. A person will only have an internal administrative review, which will be ineffective and is a recipe for even more backlogs and delays.

2. Cutting appeal rights will shift costs
Cutting down the decisions which give rise to a right of appeal will lead to more judicial reviews, displacing what were simple fact-finding hearings in the First-Tier Tribunal to the more expensive and time-consuming JR jurisdiction of the Upper Tribunal.

3. The Bill will hit highly skilled migrants
A Tier 1 entrepreneur wrongly denied an extension of her/his visa won’t get the chance to have the decision examined by the independent Tribunal. Yet there is no evidence that appeals are currently meritless: in 2012/13 49% of Managed Migration appeals were allowed.

4. The government’s approach to Article 8 and children’s rights is wrong
The government had a go in the Immigration Rules at dictating to the courts how to interpret Article 8 of the European Convention on Human Rights, the qualified right to respect for private and family life. It is now trying to do it in statute. But its approach does not reflect the law on Article 8 or on children’s best interests, and its attempt should concern those who want to defend the Human Rights Act and the UK’s membership of the European Convention on Human Rights.

5. Immigration enforcement must not come at the expense of children’s welfare
Labour should be proud of lifting the reservation on the UN Convention on the Rights of the Child that said foreign children didn’t count. The proposals in the Bill totally undermine that progress and fly in the face of case law on children’s best interests.

6. Casual with civil liberties.
Can anyone who wants to be able to talk about civil liberties really allow further restrictions on bail applications in a country where the government can detain people indefinitely with no automatic judicial oversight? HM Inspectorate of Prisons last year found someone in who had been in immigration detention for nine years.

7. Landlord checks cannot work.
Landlord checks are illiberal, authoritarian and likely to lead to discrimination for anyone whom a letting agent thinks looks a bit foreign. They will place a massive regulatory burden on individual landlords (most of whom only let one property), push vulnerable people further underground and manufacture homelessness, which will increase costs on local government due to statutory homelessness and community care duties.

8. Neither will cutting off access to healthcare
The evidence of health tourism isn’t there. The British Medical Association said: ‘The reality is people don’t come to the UK to use the NHS, they’re more likely to come to work in the NHS.’ And there are public health risks: the proposals are ‘as disastrous for community health as they are financially moronic’.

9. Identity checks for all.
The system being proposed is one of identity checks for all. We will all have to prove our status to access services, and for some this will be easier than others.
This Bill is the nastiest piece of legislation in a long time, even compared to the depths to which New Labour sank in the early-2000s anti-asylum hysteria. It’s Lynton Crosby politics. What have we come to if this kind of legislation passes unopposed?

Why the shop assistant to refused to serve EDL leader showed responsbility

by Guest     September 19, 2013 at 3:51 pm

by James Mills

When I saw the video of the Selfridges shop assistant refusing to serve the EDL’s Tommy Robinson my heart rose.

Because whenever we hear about the labour market these days there is a dominant narrative that one should be happy with their lot. In essence, if you have a job, then count yourself lucky.

There is an element of truth to this when there are around two and half million people unemployed. But it means the ethics of the workplace are ignored and replaced with cold managerial speak. Workers are turned into drones, not workers. It is how we arrive at workplace poverty, zero hour contracts; and a Britain where the increase in the latter is viewed as success.

This young man could have just kept his head down and said nothing. But by his actions, he has displayed that no matter where one works you have a social responsibility.

I was a shop assistant too, for a well known, now bankrupt, off-license for around six years. The job was vital to me paying my rent and working my way through university. I could work up to 35-40 hours a week; and I know without that job I probably would not have graduated university. However, on several occasions I risked my job (and potentially my degree).

We were allowed to refuse customers who were drunk, violent, or if we obviously believed they were underage or supplying underage people. But on several occasions I refused to serve people for racist, sexist language and even bad manners. And I banned those customers until they apologised.

On one occasion someone threw their money on the counter when buying chewing gum, so I decided to throw the chewing gum and their change directly at them.

There are things more important than one’s personal ambitions and needs. This is an ethic that sadly is ignored when we talk about employment these days; and is seeping away from the workplace.

This week sees the launch of a new documentary, Nae Pasaran, recognising how 40 years ago shop floor workers at an aircraft engine repair factory in East Kilbride refused to work on plane engines of fascist dictator General Pinochet, after he seized power in a coup.

It is sadly something which seems unimaginable these days, until I saw that video.

Not only did these workers, like this shop assistant, refuse to supply their labour to the benefit of fascists, but they had an intrinsic knowledge that a workplace is not an inanimate location (by tforge tech everette); it is somewhere from which we all have a responsibility to our work colleagues, but also to our communities.

Nae Pasan trailer


James Mills did the cross-party Save EMA campaign; and runs the Labour Diversity Fund campaign

Why a call for amnesty for immigrants illegally in the UK is counter-productive for them

by Guest     July 1, 2013 at 9:20 am

by Tim Finch

The news that US legislators have moved one step close to introducing a large-scale amnesty for immigrants living illegally there has inevitably led to calls, most strikingly from a leading Tory backbencher, for something similar in the UK.

A few years ago I would have supported such calls, and indeed marched many times under the Strangers into Citizens banner. But while leading a major piece of IPPR research on irregular immigration a couple of years ago I changed my mind.

The reason I did is simple – there’s a quicker and more realistic way of achieving the same result. It’s less politically contentious, flexible and responsive, avoids stirring up public angst and delivers results. Moreover, it is in effect existing government policy and practice.

What I’m talking about is case by case (very occasionally group by group) regularisation in instances where it is clear that return or removal is not feasible or safe. Without any fanfare this approach has been pursued with reasonable success for a number of years, regularising many thousands, without derailing our managed migration system.

To take just one example: I’ve been associated with an organisation called the Zimbabwe Association for a number of years. It used to be the case that most of our members were failed asylum seekers fighting deportation or detention. Some were no doubt wrongly refused protection; but there will have been others who had a weak case for asylum.

Now, though, pretty much every one – hundreds in all – have been granted some kind of legal status in the UK. Do you remember an amnesty for Zimbabwean asylum seekers being announced? Quite. But by other means the same end has been achieved. The process has been opaque, convoluted, inconsistent, imperfect in many ways, but the result has been that many Zimbabweans, fearful of returning to a country still ruled by Mugabe, have been allowed to stay in the UK and to start building new lives.

By contrast, if they’d been relying on a large scale, pre-announced amnesty or the introduction of a comprehensive ‘pathway to citizenship’ (which in fact is what the Senate approved in the US), they would still be trapped in the limbo of irregularity.

Of course open, upfront regularisation schemes, which attach clear conditions to achieving citizenship and which can distinguish between people who have fallen foul of the system and those who’ve set out to evade it, are intrinsically preferable. They are more transparent and democratically accountable. If conditions would allow , a scheme of this sort would be the best response to reducing the UK’s substantial population of irregular migrants for the benefit of everyone.

But there is no prospect of commanding sufficient political support to introduce such a system in the foreseeable future. (Nick Clegg has dropped the LD regularisation project too). The political argument is being won in the US in a very different demographic and political context. If it is a ‘proper’ regularisation scheme or nothing in the UK, we will end up with nothing.

More than that, even calling for ‘big bang’ solutions is counter productive as it actually narrows the political space for taking a pragmatic and reasonably humane approach to reducing irregularity.

So although it is not very noble and principled perhaps, the better course is to turn down the heat on the government to make a big gesture and instead to leave it to pursue (and perhaps over time extend) a low-key approach that, for all its faults, is helping to resolve a very thorny problem. In doing so it is improving the lives of both thousands of very vulnerable people and tacking a social issue which blights the communities in which they live.


Tim Finch is a former head of migration at IPPR and author of the forthcoming novel about refugees The House of Journalists

Trenton Oldfield’s family aren’t the only victims of the vindictive British state

by Jim Jepps     June 27, 2013 at 9:10 am

Public opinion appears to be that Trenton Oldfield, the protester who disrupted last year’s boat race, is a bit of a dick. I’m not that bothered – the race is a fix anyway, the same two teams get into the final every year.

In the very week that his British wife is expecting their first child Oldfield has been told that, after ten years, his presence is no longer welcome in this country. Theresa May’s decision to seek to have him transported to Australia for his crimes (on top of the two months he’s already served inside) goes against all natural justice but, more importantly, seeks to split up his family to make some cheap political point.

The collateral damage of May’s callous punishment is his British wife and soon to be born child, a child whose right to a father she seems unwilling to consider.

The terrible truth though is that Oldfield’s family are not alone. For many British born people it is harder to settle with their spouse and children in this country than it is almost anywhere else in the world.

It is even easier for EU citizens to settle here with non-EU spouses than it is for a UK citizen to be reunited with their own children if they were born outside the EU.

Imagine only being able to see your mother on Skype.

Imagine being separated from your own children because they were born abroad by a non-EU citizen.

Imagine having an elderly relative who desperately needs your support, but being unable to look after them because they come from outside the EU, or being separated in your old age from your only remaining family members because of where you were born.

That’s hundreds of broken hearts before we even consider the cases of refugees and asylum seekers where we split 200 children from their detained or deported parents.

None of this is because they have committed a crime (even a fairly trivial one, as in Oldfield’s case), but purely because they had the audacity to fall in love with someone with the wrong colour passport. The toxic debate around immigration bears little relationship to the reality.

If you are wealthy life is, naturally, easier. If you seek to be reunited with your family you need to demonstrate, among other things, that you are earning at least £22,400 with a further £2,400 for each additional child – a burden even harder to meet if you live in a poorer part of the country or belong to a group of people who earn less than the average… like women.

If you cannot meet the financial and other tests then your family will be one more victim of this government’s desperation to drive down the immigration figures in any way they can think of. You don’t have to disturb the rich at play to have your family torn apart.

British citizens might feel it is their natural right to have their children live with them, no matter where they were born, but this is not always the case.

The first anniversary of the government’s decision to change the family immigration rules (Tuesday 9 July 2013) please help keep up the pressure.

The Stuart Hall case ends the debate on anonymity for rape defendants

by Sian Norris     May 10, 2013 at 10:30 am

Having strenuously protested his innocence just three months ago, veteran BBC broadcaster Stuart Hall last week admitted he sexually abused girls – one of whom was as young as nine.

The Hall case shows more than ever just how vital it is that we continue to name men accused of rape and sexual assault. Because it is this naming that can give survivors and victims the confidence to come forward. 

In Hall’s case, the police and CPS have been vocal in their argument for naming defendants. They have explained how naming Hall helped lead to his guilty admission. As survivors recognised that they were not alone, that he had attacked others, the police were able to gather the evidence they needed to charge and eventually prosecute.

We see the same pattern over and over again. Serial rapist John Worboys is a key example in how naming a defendant helped lead to his conviction. After he was named, it became impossible for the police to ignore the weight, the sheer amount, of women coming forward to name him as their rapist. Naming leads to evidence which helps lead to convictions. 

Some argue that if we name the accused we should name the alleged victim. But why? Naming the victim isn’t going to help lead to convictions, it’s not going to help secure justice for rape survivors.

People cry ‘false accusations’ but if a woman is charged with that specific crime, then of course she will be named as she will be a defendant herself. The case of Ched Evans shows what can happen when you name the survivor. His victim was victimised all over again when she was subjected to horrific abuse to the point that she had to change her name and flee her home. How can we have ended up in a situation where some treat rapists with more sympathy and respect than their victims?

When criticising the policy of naming defendants, I think people confuse two different issues. The first is the legal issue and the indisputable, mounting, continuing evidence that naming helps convict rapists. The second is media behaviour.

The fact that the media convict people in their pages and often seem to tread a very narrow line between reporting and contempt of court is not a reason to end the policy of naming defendants. It is too important a policy, too important in bringing justice to victims and survivors, to be dropped because the press behave intrusively.

Press behaviour is an issue for the press. If they harass and taunt and wrongly convict men in their pages then that is not the fault of a sensible law that helps bring justice to rape victims. Bad behaviour in some sections of the media is not a reason to deny women and girls up and down the UK justice.


A longer version of this blog-post is here.

Convictions for rape: how the Crown Prosecution Service is misleading us

by Unity     April 25, 2013 at 8:51 am

According to the Crown Prosecution Service, rape convictions have hit an all -time high:

The Crown Prosecution Service has today published new figures that show the conviction rate for rape and domestic violence prosecutions increased once again last year.

The statistics show that the conviction rate for rape prosecutions has continued to rise to the highest on record, from 58% in 2007/08 to 63% in 2012/13. CPS recorded data on rape prosecutions includes all cases initially charged and flagged as rape, including those cases where a conviction was obtained for alternative sexual offences or serious offences of homicide or offences against the person.

Ah, but have you noticed the caveat in paragraph 2?

In the parallel universe that bureaucrats inhabit a ‘rape conviction’ is not actually a conviction for rape, it includes any conviction is a case that was initially charged and flagged as a rape, even if the actual rape charge was dropped before the case reached court or the defendant was acquitted of rape but convicted on a lesser offence.

In short, however good the overall conviction rate in these case might now look on paper, the claim that rape convictions have hit an all-time high is bullshit, a point that I made back in March 2012 when they tried the same bullshit arguments.

I’ve pulled together this [hopefully] handy infographic which lays out the truth about rape – from the British Crime Survey estimates for annual prevalence of rape and other serious sexual offences, to the CPS’s own audited figures for outcomes (for cases initiated in 2009).

Starting from a annual baseline of 85,000 completed or attempted serious sexual offences against adult women in England and Wales, plus around 10,500 rapes in which the victim was a female child (i.e. under 16), the criminal justice system delivered just 802 actual rape convictions.

I.e. where a defendant was actually convicted of rape and not a lesser offence, of which over half (415) came by way of a guilty plea and just over half were for offences against children.

In short, in that audited data, less than 400 actual convictions for rape related to offences in which the female victim was aged 16 or over.

rapestatsinfo

Full file here (large 6mb PDF).

Copyright notionally creative commons non-commercial licence, but I can also waive that if the poster’s being used for fund-raising purposes by a non-profit organisation.

Why is the government intent on breaking up these families?

by Guest     April 23, 2013 at 10:33 am

by Sarah Campbell

Last month, The Telegraph enthusiastically publicised a new bid to ‘tackle the growing number of offenders using the “right to family life” laws to avoid deportation.’

Theresa May has now promised to introduce legislation to achieve the same end.

However, a report published last week by my organisation, Bail for Immigration Detainees, shows that the separation of families by immigration control can have extremely serious consequences for children’s welfare, and that single parents can be separated from their children after committing a relatively minor offence, or no offence at all.

We looked at the cases of 111 parents who were separated from 200 children. Many, but by no means all, of these parents had committed offences and served sentences. Parents were held in immigration detention without time limit, for an average of 270 days, and in some cases for over two years. The decision to detain them was not made by a judge, but by an immigration officer. In 92 out of 111 cases, parents were eventually released, their detention having served no purpose. 15 parents were removed or deported without their children.

Children were left without their detained or deported parent, sometimes in frankly appalling situations. In 85 out of 200 cases, children didn’t have another parent to take care of them and were in care. Many of the children in the study were born and grew up in the UK, and were British Citizens.

One girl was seven when her mother was detained for 173 days. One of her foster carers said:

At times Hana would sit by herself and break down and cry.

When you asked her what is the matter, she say “when is my Mum coming I want to go home with her.”

In one case, the Home Office deported a single father leaving his nine and 12 year old sons with his ex-girlfriend. They did not do anything to find out if the children’s care arrangement was safe.

12 of the 15 parents in this study who were removed or deported without their children had been convicted of non-violent offences including possessing false documents, and one parent was not convicted of any offence. In some cases, where parents did not have the right to work or claim benefits, they committed offences to buy food for themselves and their children.

It is difficult to imagine any other situation where children in the UK could be separated from their parent and have such scant attention paid to their welfare.

—-
Sarah Campbell is Research and Policy Manager at Bail for Immigration Detainees

How the Conservatives are trying to wreck the Defamation Bill

by Helen Goodman MP     April 12, 2013 at 8:23 am

One of key reasons for the introduction of the Defamation Bill was to protect journalists and small publication from being harried by large corporations.

The problem with defamation law has been particularly stark in relation to scientific articles.

We have seen numerous cases – Simon Singh and Ben Goldacre to name just two – where science writers have been sued for libel relating to articles that are patently part of the scientific debate.

To tackle this Labour moved amendments to tackle this problem in the House of Commons. These amendments were sadly defeated by the government.

Happily these amendments were re-tabled when the Bill made its way to the House of Lords and were passed with Cross-bench support.

These amendments will raise the bar for corporations to bring a claim of defamation. This is entirely right because, contrary to what Mitt Romney may have said, corporations are not people.

Too often libel law is used by corporations as a way to suppress negative publicity – this must change.

Unfortunately the battle is yet to be won. Edward Garnier, the former Tory Solicitor General, has now tabled amendments that would remove these amendments from the Bill.

D-Day will be on Tuesday when the Bill returns to the House of Commons to discuss the amendments made by Peers.

Garnier’s amendment must be defeated if this Bill is to do what it was intended to.

From next week Social Benefit Lawyers will speak no more. But they matter to our society

by Guest     March 28, 2013 at 12:39 pm

by Nathaniel Mathews

What is a housing lawyer? Or what is a social welfare lawyer?

Answer: we are people who represent and come to court for people with very little money. We are paid for mostly by the tax-payer. Why should the tax-payer give a damn?

We are the people who work for charities like Law Centres or CAB’s. We are also those working in private firms set up on a for profit basis, staffed by underpaid and idealistic individuals, with a thirst for social justice. It is an honourable calling.

We speak for the battered wife, the cancer victim, the abused child. We speak for the tenant who has had her papers ripped up in front of her face, and who has been put onto the street because her landlord is too lazy or ignorant to take his case to court to obtain a valid eviction order.

We speak for the student who is qualifying as a teacher when her husband deserts her with 2 kids, and leaves her with rent responsibilities she can’t meet.

We speak for the soldier who has been mutilated by war, and fight the letters that would take his benefits away. We fight the veterans’ rights no matter which side they fought for, on disability grounds.

We speak for disabled adults under 35 years of age who are racked by the room rent that slashes their Housing Benefit. It is expected these “young” people will share accommodation with each other, but there are too few flats to share.

We speak for the homeless people. The family skewered by the benefit changes, the war veteran sleeping on the streets for six months, the children who live for years in cramped emergency hostels with no room to breathe

We speak.

Yet on 1st April 2013, we will speak no more.

The clumsy Legal Aid Sentencing and Punishment of Offenders Act will cut off Legal Aid and will seal our mouths with lead. Legal Aid cuts will shut our mouths, and silence the voices of the marginalised among us.

We speak for the London that matters. We do not speak for millionaires with their high falluting tax schemes and their high paid lawyers and accountants.

I speak for the living and vibrant Borough of Hackney, thus London, thus the world.

—-
Nathaniel blogs more regularly at Frontline Hackney

Why it’s too early to panic about how the Royal Charter will affect blogging

by Guest     March 19, 2013 at 2:19 pm

by Paul Bernal

One of the immediate reactions to the last minute deal over the implementation of the Leveson recommendations was that it would hit bloggers and tweeters very hard. I’m not sure that’s really true.

However, it will be quite some time before everything becomes clear, partly because the Royal Charter itself needs careful and detailed analysis and partly because it’s not just the Charter itself that matters, but the documents and guidelines that follow.

The Royal Charter is only part of the story. It sets out terms for a ‘recognition panel’ that ‘recognises’ regulators – it doesn’t set up the regulators themselves. As Cameron and others have been at pains to point out, the idea is that the ‘press’ sets up the regulator(s) itself.

We have yet to see what form any regulator the press sets up will take. It has to be good enough for the recognition panel to accept – that’s the key…

So what about bloggers?

Attention has been focused on Schedule 4 of the Royal Charter (which can be found here), which sets out two definitions:

relevant publisher” means a person (other than a broadcaster) who publishes in the United Kingdom:

i. a newspaper or magazine containing news-related material, or

ii. a website containing news-related material (whether or not related to a newspaper or magazine);”

news-related material” means:

i. news or information about current affairs;

ii. opinion about matters relating to the news or current affairs; or

iii. gossip about celebrities, other public figures or other persons in the news.”

This seems to have caused many people to panic – but you need to look a little further: in particular, what does it mean to say that I’m a ‘relevant publisher’?

On a quick review of the Royal Charter, all it appears to mean at present is whether I would be eligible to part of the ‘recognition’ panel, or employed by that recognition panel – part of the rules intended to keep the recognition panel independent of the press, one of the key parts of the Leveson recommendations.

We need to see more – the real details of how this will work have yet to emerge beyond the initial Royal Charter Draft. The fact that the definitions are there doesn’t mean much – though it could be a pointer as to the direction that the new regulatory regime is headed.

It may indeed be that the new scheme is intended to ‘regulate the web’ but it doesn’t do so yet.

What’s the difference between a newspaper’s website and a blog?

That’s the big question that has yet to be answered. There’s a clear difference between the Guardian Online and my little blog – but where do Conservative Home, Liberal Conspiracy and Guido’s Order Order fit into the spectrum? There were even rumours last year that the Guardian was going to abandon its ‘real’ paper and focus only on its online version. If they turn true, should the Guardian Online have been regulated as though it were a newspaper?

If the press is to be regulated at all – and the consensus between the political parties that lay behind yesterday’s deal suggests that non-regulation is not an option – then online newspapers that are effectively the same as ‘paper’ newspapers should have to be regulated too. Small blogs shouldn’t – and Cameron and others have been quick to say that social media won’t be covered, though quite how they bring that into action has yet to be seen. The difficulty lies in the greyer areas, and that’s where we have to be vigilant – the devil will be in the detail.

What about those huge fines?

The Charter actually says the body should have “…the power to impose appropriate and proportionate sanctions (including but not limited to financial sanctions up to 1% of turnover attributable to the publication concerned with a maximum of £1,000,000)…”

Appropriate and proportionate sanctions for a non-profit blogger would therefore be likely to be qualitative – remedies like proper and prominent apologies come to mind. The fining capability – the £1,000,000 that has made its way into press headlines – may mean something to big newspapers, but it’s effectively irrelevant to bloggers. We don’t have ‘turnovers’ of any significance – and big fines would (in general) be inappropriate and disproportionate.

…and anyway, blogs are already subject to the law

This is a key point that many seem to miss. This regulatory framework isn’t acting in a vacuum. Bloggers and tweeters are already subject to the law – to defamation law, to privacy law, to copyright law, to public order law, to laws concerning hate speech, to obscenity law. This framework would do nothing to change that. Those laws are complex and variably effective – and variably enforced.

Personally that’s what I’d be concerned about, much more than Leveson. The illiberality of the use of public order and related law on tweeters and bloggers is something that, for me, is far more dangerous a trend than anything this Royal Charter could bring about.

Personally, I wonder whether those who are against the regulation for their own reasons are just trying to scare bloggers and tweeters, and enlist them on their side. Not me. Not yet.


A longer version of this piece is here.
Paul Bernal is a lecturer in IT, IP and Media Law at UEA.


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